Tan (Migration)

The Administrative Appeals Tribunal considered the case of Mr Tan, the holder of a Student (Temporary) (Class TU) visa, subclass 572. The dispute concerned the cancellation of Mr Tan's visa by the Department of Home Affairs on the grounds that he had breached condition 8202 of the Migration Regulations 1994. Mr Tan argued that he had not breached the condition and that the discretion to cancel his visa should not have been exercised.

The primary legal issue before the Tribunal was whether Mr Tan had complied with condition 8202 of the Migration Regulations 1994, which requires a student visa holder to be enrolled in a registered course. If a breach was found, the Tribunal also had to consider whether to exercise its discretion to affirm or set aside the cancellation decision. Condition 8202(2) mandates enrolment in a registered course, while subclauses (3)(a) and (3)(b) relate to satisfactory course progress and attendance, respectively.

The Tribunal found that Mr Tan was enrolled in a registered course from July 2016 to July 2017, including a Certificate IV in Business and an English course. However, the Tribunal was satisfied, based on Mr Tan's own evidence and the Department's records, that he ceased enrolment in a registered course from 26 July 2017. This constituted a breach of condition 8202(2). The Tribunal also found that Mr Tan received all necessary notifications from the Department regarding the cancellation. In considering the discretion to cancel, the Tribunal noted that while no specific matters were mandated for consideration, it had regard to the circumstances, including Mr Tan's explanation of disputes with an agent and education provider, and his subsequent attempts to enrol in a new course. Despite Mr Tan's explanations and the provision of some documentary evidence, the Tribunal was not satisfied that the circumstances warranted setting aside the cancellation decision, particularly given the lack of comprehensive evidence regarding his academic progress and payments for previous courses.

The Tribunal affirmed the decision of the Department to cancel Mr Tan's visa.