Shen (Migration)

This matter concerned an appeal by an applicant against the cancellation of their Student (Temporary) (Class TU) Higher Education Sector (subclass 573) visa. The visa was cancelled by the Department on the grounds that the applicant had breached condition 8202 of Schedule 8 to the Migration Regulations 1994, specifically by not being enrolled in a registered course. The Administrative Appeals Tribunal was required to determine whether the applicant had indeed breached this condition and, if so, whether to exercise its discretion to affirm the cancellation.

The primary legal issue before the Tribunal was whether the applicant had complied with condition 8202 of the Migration Regulations. This condition, as relevant to the applicant's visa subclass, required the holder to be enrolled in a registered course. The applicant's visa was cancelled based on information from the Provider Registration and International Student Management System (PRISMS) indicating a lack of enrolment in a registered course since March 2015. The applicant contended that they had changed courses to a more suitable and less pressured option at the Australian Ideal College after finding their initial studies difficult, and that they had completed several diploma courses there.

The Tribunal found that, on the evidence, the applicant was not enrolled in a registered course, and therefore had not complied with condition 8202(2). In considering the exercise of discretion to cancel the visa, the Tribunal noted that student visas are granted for the purpose of achieving an educational qualification. The applicant had initially intended to study a Master of Business Administration at Charles Sturt University, but their enrolment in that course was cancelled in March 2015. The Tribunal observed that since arriving in Australia, the applicant had completed only one registered course and had not been actively studying for a significant period. Furthermore, subsequent enrolments were either not commenced or not completed. Based on these findings, the Tribunal was not satisfied that the applicant's present intention for staying in Australia was for the purposes of study.

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