PATEL (Migration)

This matter concerned the review of a decision to cancel the applicant's Subclass 500 Student (Temporary) visa. The applicant had failed to maintain enrolment in a registered course at AQF Level 7 or higher, thereby breaching condition 8202 of the Migration Regulations 1994. The applicant contended that her non-enrolment was beyond her control due to mental health struggles and difficulties settling into the Australian education system.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of the Migration Regulations 1994, and if so, whether the decision to cancel her visa should be affirmed. Condition 8202 requires a student visa holder to maintain enrolment in a full-time registered course that will lead to a qualification at the same or a higher AQF level than the course for which the visa was granted. The Tribunal also considered the applicant's submissions regarding the hardship she might face if the cancellation was affirmed.

The Tribunal found that the applicant had not complied with condition 8202(2)(a) and (b) of the Migration Regulations. Despite a history of academic difficulties, personal challenges including relationship breakdowns and depression, and changes in educational institutions, the applicant had not successfully completed any course of study and had not maintained enrolment at the required AQF level for a period of six years. The Tribunal noted that the applicant's stated intention to "prove commitment to study" was insufficient given the prolonged period of non-compliance. While acknowledging the applicant's personal circumstances and her husband's visa status, the Tribunal concluded that the extent of non-compliance was significant and went to the core purpose of the student visa grant.

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