Saraphok (Migration)

This matter concerned an appeal by an applicant, a Thai national, against the cancellation of her Student (Temporary) (Class TU) visa, Subclass 573 Higher Education Sector. The visa was cancelled on the grounds that she had breached condition 8202 of the Migration Regulations 1994 by failing to remain enrolled in a registered course of study. The applicant admitted to not being enrolled in a registered course since 11 April 2016.

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 discretion to cancel her visa should be exercised. Condition 8202 requires a student visa holder to be enrolled in a registered course and to achieve satisfactory course progress and attendance. The Tribunal was required to consider the applicant's circumstances, including the reasons for her non-enrolment and her failure to contact the Department or her education provider.

The Tribunal found that the applicant had indeed breached condition 8202(2) by failing to be enrolled in a registered course, as evidenced by her own admission. In considering the exercise of discretion to cancel the visa, the Tribunal had regard to the applicant's explanation that her family had withdrawn financial support due to her same-sex relationship, leading to her inability to pay for her studies. However, the Tribunal noted that the applicant had made no attempt to contact the Department or her education provider regarding her changed circumstances, nor had she sought to return home, despite a significant period of non-enrolment.

Consequently, the Tribunal affirmed the decision to cancel the applicant's visa, finding that the prolonged breach, coupled with the lack of communication with relevant authorities, weighed against the exercise of discretion to allow her to remain in Australia.