Miao (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Student (Temporary) (Class TU) visa, subclass 573, was cancelled. The dispute centred on whether the applicant had breached a condition of their visa, leading to the cancellation. The Tribunal, presided over by Member Wendy Banfield, was tasked with reviewing the decision to cancel the visa.

The primary legal issue before the Tribunal was whether the applicant had complied with condition 8202 of Schedule 8 to the Migration Regulations 1994. Specifically, the Tribunal had to determine if the applicant was enrolled in a registered course, as required by condition 8202(2), and if not, whether the discretion to cancel the visa should be exercised. The applicant's visa was cancelled on the basis that they were not enrolled in a registered course.

The Tribunal found that the applicant had not complied with condition 8202(2) as they were not enrolled in a registered course. While accepting the applicant's initial intention to study in Australia, the Tribunal noted that since their arrival, the applicant had been working and had not attempted to re-enrol or provided evidence of future study plans. The Tribunal considered the applicant's stated desire to complete studies, the potential hardship of visa cancellation, and the circumstances leading to the non-compliance. Despite acknowledging some compliance with other visa conditions and the applicant's stated intention to study, the Tribunal was not satisfied that the applicant had a compelling need to remain in Australia, nor that the hardship claimed was sufficient to outweigh the failure to comply with a fundamental visa condition.

Consequently, the Tribunal concluded that the ground for cancellation under s.116(1)(b) of the Act existed and, having regard to all relevant circumstances, affirmed the decision to cancel the applicant's visa.