Tran (Migration)

This matter concerned an appeal by a visa holder against the cancellation of their Subclass 572 (Student) visa. The applicant’s visa was cancelled on the grounds of failing to maintain enrolment in a registered course, thereby breaching condition 8202 of the Migration Regulations 1994. The Administrative Appeals Tribunal was required to determine whether the applicant had complied with condition 8202 and, if not, whether the discretion to cancel the visa should be exercised.

The Tribunal was required to consider whether the applicant had breached condition 8202 of the Migration Regulations 1994, which mandates enrolment in a registered course, satisfactory course progress, and satisfactory course attendance. If a breach was established, the Tribunal then had to consider the exercise of discretion under section 116(1) of the Migration Act 1958 regarding the cancellation of the visa. The applicant had provided reasons for their non-enrolment, including concerns about their father's ill-health in their home country and alleged unfair cancellation of their enrolment by their previous education provider.

The Tribunal found that the applicant had not been enrolled in a registered course between 27 June 2017 and 20 March 2018, thus establishing a breach of condition 8202(2)(a). While acknowledging the applicant's stated reasons, including their father's ill-health and issues with their former education provider, the Tribunal placed no weight on these matters as exceptional circumstances justifying a failure to comply with the visa conditions. The Tribunal concluded that the circumstances leading to the non-enrolment were not exceptional and, after considering all matters, affirmed the decision to cancel the applicant's visa.