Wang (Migration)

This matter concerned the review of a decision by the Department of Immigration and Border Protection to cancel the applicant's Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa. The applicant had been granted the visa on 11 June 2015. The dispute centred on whether the applicant had breached a condition of her visa, leading to its cancellation.

The primary legal issue before the Tribunal was whether the applicant had complied with condition 8202 of Schedule 8 to the Migration Regulations 1994. Specifically, the Tribunal had to determine if the applicant remained enrolled in a registered course of study, as required by condition 8202(2)(a). If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, having regard to any relevant matters, including the applicant's reasons for non-compliance and any potential international obligations.

The Tribunal found that the applicant had not been enrolled in a registered course of study since 15 December 2016, and therefore had breached condition 8202(2)(a). The applicant acknowledged this fact. The Tribunal considered the applicant's stated reasons for ceasing enrolment, including health issues, family bereavement, and a desire to transfer universities, but concluded these were not exceptional circumstances justifying a failure to comply with the visa condition. The Tribunal also considered the applicant's English language proficiency and her lack of fear regarding return to China, finding no breach of international obligations. Applying the principles of s.116(1) of the Act, the Tribunal determined that the visa should be cancelled.

The Tribunal affirmed the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.