SHI (Migration)

The Administrative Appeals Tribunal considered the cancellation of the applicant's Student (Temporary) (Class TU) visa, Subclass 573 (Higher Education Sector). The dispute arose because the applicant was not enrolled in a registered course of study, which constituted a breach of condition 8202 of the Migration Regulations 1994. The Tribunal was required to determine whether the applicant had breached this condition and, if so, whether the discretion to cancel the visa should be exercised.

The Tribunal found that the applicant had indeed breached condition 8202(2) of the Regulations, as she was not enrolled in a registered course of study between 29 April 2016 and 19 January 2017. In considering the exercise of discretion to cancel the visa, the Tribunal had regard to the applicant's original purpose for entering Australia, which was to study, and her stated compelling need to remain due to her child being born in Australia. However, the Tribunal noted that the Student Visa programme is not intended for permanent migration. The Tribunal also considered the extent of the applicant's compliance with other visa conditions, the degree of hardship that might be caused by cancellation, and the applicant's lack of clarity regarding her studies and the circumstances leading to her visa cancellation, which led the Tribunal to question her genuineness as a student.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's visa. The Tribunal concluded that while there might be some hardship, it was not sufficient to outweigh the fundamental breach of failing to maintain enrolment and engage in a course of study, which is central to the purpose of a student visa. The applicant had not demonstrated a compelling need to remain in Australia, and her lack of genuine engagement with her studies weighed against her.