SAMATHI (Migration)

This matter concerned an appeal by the applicant, a holder of a Student (Temporary) (Class TU) visa, subclass 500, against the decision of a delegate to cancel her visa. The dispute arose from the applicant's alleged failure to comply with condition 8202 of the Migration Regulations 1994, specifically the requirement to be enrolled in a registered course of study. The applicant's visa was cancelled on the basis that she was not enrolled in a registered course from 30 October 2017.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of her visa. This condition, as relevant, required the applicant to be enrolled in a full-time registered course and not to have been certified by her education provider as not achieving satisfactory course progress or attendance. If a breach was established, 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 found that the applicant had indeed breached condition 8202(2) as she was not enrolled in a registered course from 30 October 2017, a fact she affirmed at the hearing. In considering the discretion to cancel the visa, the Tribunal had regard to various factors, including the applicant's stated purpose for travel and stay, the extent of her compliance with visa conditions, the degree of hardship cancellation might cause, and the circumstances in which the ground for cancellation arose. While the applicant stated an intention to study English and then a diploma, she provided no evidence of a compelling need to remain in Australia. She confirmed her lack of enrolment and offered reasons for not proceeding with further study, including financial concerns related to pregnancy and the non-receipt of fee payment notices. The Tribunal accepted that some financial and emotional hardship might result from cancellation but gave this factor little weight.

Ultimately, the Tribunal concluded that, considering all the circumstances, the visa should be cancelled. Accordingly, the Tribunal affirmed the delegate's decision to cancel the applicant's Class TU visa.