Thieu (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Student (Temporary) (Class TU) visa, Subclass 573 Higher Education Sector, held by an applicant who had ceased study. The dispute arose because the applicant was no longer enrolled in a registered course, which potentially breached a condition of their visa, leading to its cancellation by the delegate.

The Tribunal was required to determine whether the applicant had breached condition 8202 of Schedule 8 to the Migration Regulations 1994. Specifically, the Tribunal needed to ascertain if the applicant had complied with the requirement to be enrolled in a registered course, as stipulated by condition 8202(2)(a). If a breach was found, the Tribunal then had to consider whether to exercise its discretion to affirm the cancellation of the visa.

The Tribunal reasoned that condition 8202(2)(a) mandates that a visa holder must be enrolled in a registered course, and this requirement does not permit the holder to cease enrolment, as established in *Liu v MIMIA* [2003] FCA 1170. The evidence before the Tribunal indicated that the applicant had not been enrolled in a registered course since 22 April 2016, a period of approximately 11 months prior to the delegate's decision. This prolonged non-enrolment was considered a significant and serious breach, as it indicated the applicant was not pursuing the purpose for which the visa was granted. Despite acknowledging potential financial difficulties and the consequences of becoming an unlawful non-citizen, the Tribunal found no extenuating circumstances or compassionate reasons to exercise its discretion not to cancel the visa.

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