NJERI (Migration)

This matter concerned an application to review the cancellation of a Student (Temporary) (Class TU) Subclass 573 visa. The applicant, who held the visa for the purpose of undertaking a Diploma of Nursing, had her visa cancelled on the basis that she was not enrolled in a registered course, thereby breaching condition 8202 of the Migration Regulations 1994. The applicant contended that personal circumstances, including the birth of her Australian citizen child and abandonment by her husband, were reasons for her ceasing study and should be considered in the exercise of discretion regarding visa cancellation. The decision was made by Vanessa Plain.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of the Migration Regulations 1994, specifically by failing to remain enrolled in a registered course of study. If a breach was established, the Tribunal was then required to consider whether, in the exercise of its discretion, the visa cancellation should be affirmed, having regard to the applicant's stated reasons and relevant departmental guidelines.

The Tribunal found that the applicant had indeed breached condition 8202(2) as she had not been enrolled in a registered course since 8 May 2018. While acknowledging the applicant's personal circumstances, including the birth of her child and relationship difficulties, the Tribunal was not satisfied that these constituted compelling reasons beyond the applicant's control that caused the breach. The Tribunal noted the substantial period of non-compliance and the lack of evidence that the applicant had taken steps such as deferring her course, seeking professional advice, or informing the department of her situation. Consequently, the Tribunal concluded that the applicant's purpose for remaining in Australia was no longer aligned with the original grant of the student visa, and that her circumstances provided a compelling incentive to remain in Australia permanently rather than for study.

The Tribunal affirmed the decision to cancel the applicant's visa.