Ng (Migration)

The Administrative Appeals Tribunal considered the cancellation of the applicant's Student (Temporary) (Class TU) visa, Subclass 572 (Vocational Education and Training Sector). The dispute arose because the applicant was not enrolled in a registered course, which constituted a breach of condition 8202 of the Migration Regulations 1994. The Tribunal, presided over by Wendy Banfield, was tasked with determining whether this breach warranted the cancellation of the applicant's visa.

The primary legal issue before the Tribunal was whether the applicant had complied with condition 8202 of her visa, specifically the requirement to be enrolled in a registered course. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, taking into account various factors including the purpose of the visa, the extent of compliance with other conditions, and the potential hardship to the applicant.

The Tribunal found that the applicant had indeed breached condition 8202(2) by not being enrolled in a registered course between May 2016 and January 2017. However, in considering the discretion to cancel, the Tribunal noted that the applicant discontinued her studies because her husband obtained a job interstate with the possibility of regional sponsorship, and she intended to continue studying pending the outcome of a visa application. While the applicant did not demonstrate a compelling need to remain in Australia, the Tribunal gave weight to the fact that she had complied with other visa conditions and would suffer significant hardship by being unable to remain in Australia with her husband. Crucially, the Tribunal considered that the circumstances leading to the non-enrolment were beyond the applicant's control, aligning with guidelines suggesting that cancellation should generally not occur in such situations.

Consequently, the Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel it.