Miao (Migration)

This matter concerned an appeal by an applicant whose Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa was cancelled by the delegate. The dispute centred on whether the applicant had breached condition 8202 of the Migration Regulations 1994, which requires a student visa holder to be enrolled in a registered course of study. The applicant did not respond to the Notice of Intention to Consider Cancellation (NOICC) and subsequently, the delegate cancelled the visa. The applicant then sought review of this decision before the Tribunal.

The primary legal issue before the Tribunal was to determine whether the applicant had breached condition 8202(2)(a) of the Migration Regulations 1994 by failing to be enrolled in a registered course of study. If a breach was established, the Tribunal was then required to consider whether to exercise its discretion to cancel the visa under section 116(1) of the Migration Act 1958, having regard to all relevant circumstances.

The Tribunal found that the evidence, particularly from the Provider Registration and International Student Management System (PRISMS), indicated that the applicant had not been enrolled in a registered course of study since 31 March 2015, approximately five months after her visa was granted. This failure to maintain enrolment constituted a breach of condition 8202(2)(a). In considering the exercise of discretion to cancel the visa, the Tribunal noted the applicant’s stated intention to study in Australia at the time of her application, but found that her subsequent lack of enrolment for an extended period cast doubt on her present intention to reside in Australia for the purpose of study. While acknowledging potential hardship to the applicant, including the possibility of detention and removal, and the limitations on future visa applications, the Tribunal concluded that the breach was significant and that, on the totality of the circumstances, the visa cancellation should be affirmed.