Mariano (Migration)

The Administrative Appeals Tribunal, with Member Wendy Banfield presiding, considered the case of an applicant whose Student (Temporary) (Class TU) Subclass 572 visa was cancelled. The dispute centred on whether the applicant had breached condition 8202 of the Migration Regulations 1994 by failing to maintain enrolment in a registered course, and if so, whether the cancellation of the visa was warranted.

The Tribunal was required to determine if the applicant had complied with condition 8202 of the Migration Regulations 1994, specifically subclause (2) which mandates enrolment in a registered course. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa under section 116(1) of the Migration Act 1958, taking into account various factors including the applicant's purpose for travel, compelling need to remain in Australia, extent of compliance with visa conditions, and any hardship that might result from cancellation.

The Tribunal found that the applicant had not disputed the Department's assertion that they were not enrolled in a registered course between October 2016 and June 2017, thereby breaching condition 8202(2). In considering the discretion to cancel, the Tribunal found the applicant's stated reasons for studying in Australia – to update skills for future employment prospects – were too general and did not constitute a compelling need to remain. While acknowledging that some hardship would be caused by cancellation, the Tribunal concluded that these consequences were the intended outcomes of the legislation and did not outweigh the fundamental breach of failing to maintain enrolment.

Consequently, the Tribunal affirmed the decision to cancel the applicant's Subclass 572 visa.