Marongiu (Migration)

This matter concerned an appeal by an applicant against the cancellation of their Student (Temporary) (Class TU) visa, Subclass 572 (Vocational Education and Training Sector). The applicant's visa was cancelled by a delegate of the Department of Immigration and Border Protection on the grounds that they had breached condition 8202 of the Migration Regulations 1994 by not being enrolled in a registered course. The applicant had ceased studying in October 2015, departed Australia in December 2015, and remained offshore until April 2016. Following a Notice of Intention to Cancel Visa, the delegate cancelled the visa in December 2016. The Administrative Appeals Tribunal was required to determine whether the applicant had breached condition 8202 and, if so, whether the discretion to cancel the visa should be exercised.

The Tribunal first considered whether the applicant had complied with condition 8202(2) of the Migration Regulations 1994, which requires a visa holder to be enrolled in a registered course. The evidence established that the applicant had ceased studying and was not enrolled in a registered course for an extended period, thus breaching this condition. The Tribunal then considered the exercise of discretion regarding the cancellation of the visa, having regard to the applicant's purpose for travel, the extent of compliance with visa conditions, and the degree of hardship that might be caused by cancellation.

In its reasoning, the Tribunal found that while the applicant's original intention to travel to Australia was to study, their claims about future endeavours, such as starting a carpentry business, were general and unsupported by independent evidence, failing to demonstrate a compelling need to remain in Australia. Although the applicant had not breached other visa conditions and acknowledged that cancellation might cause some hardship, including psychological and emotional distress, the Tribunal concluded that the applicant had not demonstrated a significant level of hardship. The Tribunal noted the applicant's extended stay in Australia, the limited completion of courses, and their existing background and work history, which would assist them in the future. Weighing all circumstances, the Tribunal affirmed the decision to cancel the applicant's visa.