Po Ying (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Student (Temporary) (Class TU) visa, Subclass 572 (Vocational Education and Training Sector), held by the applicant. The dispute arose from the applicant's alleged failure to comply with a condition of her visa, leading to the delegate's decision to cancel it. The applicant did not attend the Tribunal hearing or provide submissions.

The primary legal issue before the Tribunal was whether the applicant had breached Condition 8202 of Schedule 8 to the Migration Regulations 1994. Specifically, the Tribunal had to determine if the applicant was enrolled in a registered course between 25 August 2016 and 1 May 2017, as required by Condition 8202(2). If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa under section 116(1) of the Migration Act 1958.

The Tribunal reasoned that the applicant had breached Condition 8202(2) as there was no evidence before it that she was enrolled in a registered course during the specified period. The applicant had not provided any evidence to counter the delegate's assertion or to demonstrate her enrolment. Furthermore, the applicant failed to respond to the Notice of Intention to Consider Cancellation. In considering the discretion to cancel, the Tribunal had regard to various factors, including the applicant's lack of compelling need to remain in Australia, the significance of the breach, and the absence of evidence of hardship should the visa be cancelled. The Tribunal found no grounds for cancellation beyond the applicant's control and gave minimal weight to the lack of other breaches, given the fundamental nature of the enrolment requirement.

Ultimately, the Tribunal affirmed the delegate's decision to cancel the applicant's visa, concluding that, on the evidence presented, the cancellation was warranted.