Muenna (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 visa was cancelled by the Department on the basis that the applicant was not enrolled in a registered course, a breach of condition 8202 of the Migration Regulations 1994. The applicant responded to the Notice of Intention to Consider Cancellation, admitting non-enrolment since May 2017 and attributing this to personal difficulties including eyesight deterioration and a relationship breakdown.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of their visa. Specifically, the Tribunal had to determine if the applicant was enrolled in a registered course as required by condition 8202(2)(a). If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, having regard to the applicant's stated personal circumstances and government policy guidelines.

The Tribunal found that the applicant had indeed breached condition 8202, as they conceded they had not been enrolled in a registered course since May 2017 and provided no evidence of subsequent enrolment. The Tribunal noted that the applicant's personal circumstances, while acknowledged, did not excuse the breach, particularly as the applicant had not approached their education provider and the stated reasons were not beyond their control. Applying the principles from *Liu v MIMIA* [2003] FCA 1170, the Tribunal held that ceasing enrolment in a registered course constituted a breach of the condition. In considering the discretion to cancel, the Tribunal found the breach significant due to its duration and the fundamental nature of enrolment to a student visa. While acknowledging potential financial hardship and the consequences of becoming an unlawful non-citizen, these factors were not persuasive enough to override the breach.

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