Shen (Migration)

This matter concerned an appeal by an applicant, Shen, against the cancellation of his Student (Temporary) (Class TU) visa by the Department of Immigration and Border Protection. The dispute arose because the applicant had ceased enrolment in a registered course of study, which the Department considered a breach of condition 8202 of the *Migration Regulations 1994*. The Administrative Appeals Tribunal was required to determine whether the applicant had breached condition 8202 and, if so, whether to exercise its discretion to affirm the cancellation of the visa.

The Tribunal was required to consider whether the applicant had complied with condition 8202 of Schedule 8 to the *Migration Regulations 1994*. This condition mandates that a student visa holder must be enrolled in a registered course and maintain satisfactory course progress and attendance. The applicant's visa was cancelled on the basis that he had not been enrolled in a registered course since 12 December 2015, thereby failing to meet the requirements of condition 8202(2)(a). The Tribunal also had to consider whether, having found a breach, it should exercise its discretion to cancel the visa, taking into account the applicant's circumstances and relevant government policy.

The Tribunal found that the applicant had not been enrolled in a registered course since December 2015, and therefore had breached condition 8202(2)(a). In considering the exercise of discretion, the Tribunal noted the applicant's original intention for study, his lack of non-compliance with other visa conditions, and the potential financial hardship and immediate unlawful status if the visa were cancelled. However, the Tribunal also considered the three-year exclusion period and limited future visa options. Weighing these factors, and finding no evidence of negative impact on family members in Australia or a breach of international obligations, the Tribunal concluded that the visa cancellation was warranted. The Tribunal affirmed the decision to cancel the applicant's visa.