TSANG (Migration)

This matter concerned an appeal by a visa holder against the cancellation of their Student (Temporary) (Class TU) visa, Subclass 572 (Vocational Education and Training Sector). The applicant had been enrolled in Diploma courses in Management at Sydney College of Business and Information Technology but did not continue their studies after returning from compassionate leave. The visa was cancelled on the ground that the applicant was not enrolled in a registered course, thereby breaching condition 8202 of the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of the Migration Regulations 1994, which requires a student visa holder to be enrolled in a registered course. If a breach was established, the Tribunal was then required to consider whether to exercise its discretion to cancel the visa, having regard to the circumstances of the case.

The Tribunal found that the applicant had not complied with condition 8202(2) as they were not enrolled in a registered course since 4 March 2016. In considering the discretion to cancel the visa, the Tribunal noted that while the applicant had not provided independent evidence of the claimed stress and depression, and had not satisfactorily explained their prolonged failure to study, they had not breached other visa conditions. The Tribunal also considered the applicant's stated purpose for remaining in Australia, finding that while the applicant wished to continue studying, they had not demonstrated a compelling need to remain. Despite the applicant's lack of compelling need to stay and failure to provide satisfactory explanations for non-compliance, the Tribunal ultimately concluded that the visa should not be cancelled, and therefore affirmed the decision to cancel the applicant's visa.