SUKAN (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Student (Temporary) (Class TU) visa, Subclass 572, held by the applicant. The dispute arose because the applicant was not enrolled in a registered course of study for significant periods, which constituted a breach of visa condition 8202. The Tribunal was required to determine whether the applicant had breached condition 8202 and, if so, whether to exercise its discretion to cancel the visa.

The Tribunal found that the applicant had indeed breached condition 8202(2) of the Migration Regulations 1994, as she was not enrolled in a registered course from 7 February 2015 to 24 September 2015 and again from 9 March 2016 to 22 December 2016. Having established the ground for cancellation, the Tribunal then considered its discretion. It weighed the applicant's stated purpose for holding the visa, which was to undertake studies, against the significant periods of non-compliance. While acknowledging the birth of an Australian citizen child during the relevant period and the applicant's assertion of sole care responsibilities, the Tribunal found insufficient evidence to fully assess the impact of these circumstances on her ability to study.

The Tribunal concluded that the applicant's non-compliance with the enrolment condition for a substantial period weighed heavily in favour of cancellation. Although some weight was given to the hardship potentially caused by the birth of her child, the Tribunal was not satisfied that the applicant had a compelling need to remain in Australia. Consequently, the Tribunal affirmed the decision to cancel the applicant's visa.