Qiu (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 500 (Student) visa held by Mr. Qiu. The cancellation was based on the ground that Mr. Qiu was not enrolled in a registered course, thereby breaching condition 8202 of the Migration Regulations 1994. Mr. Qiu had completed his Master of Engineering Management course, but due to failing a unit and needing to repeat it, his final research project was delayed. This delay meant he missed the enrolment period for the first trimester of 2019, and he subsequently re-enrolled for the second trimester of 2019 to complete his degree.

The Tribunal was required to determine whether Mr. Qiu had breached condition 8202 of his visa, which mandates enrolment in a full-time 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 Mr. Qiu's stay, the circumstances leading to the breach, and the extent of non-compliance.

The Tribunal found that Mr. Qiu was indeed not enrolled in a registered course between 14 January 2019 and 19 April 2019, constituting a breach of condition 8202(2). However, in considering the exercise of discretion, the Tribunal noted that Mr. Qiu's sole purpose for being in Australia was to study, and his non-enrolment arose from a failure to check his results promptly, which was not considered reckless or culpable. Crucially, the period of non-enrolment was as short as it could have been given the circumstances, as he had no alternative but to wait for the commencement of the second trimester to complete his studies. This significantly mitigated the weight given to the extent of his non-compliance.

Considering all the circumstances, the Tribunal concluded that the cancellation of Mr. Qiu's visa was not warranted. The decision under review was set aside, and a substitute decision was made not to cancel his Subclass 500 (Student) visa.