WANG (Migration)

This matter concerned the review of a decision to cancel the applicant's Student (Temporary) (Class TU) Subclass 573 (Higher Education Sector) visa. The applicant had failed to enrol in a registered course of study for a period of approximately 23 months. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant had breached a condition of their visa and, if so, whether the cancellation of the visa was appropriate.

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 considered whether the applicant had fulfilled the requirement to be enrolled in a registered course of study. If a breach of this condition was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa under section 116(1) of the Migration Act 1958.

The Tribunal found that the applicant had not complied with Condition 8202(2) as they had not been enrolled in a registered course of study since 4 November 2014. The Tribunal noted that the applicant had been properly invited to a hearing but failed to attend or provide further submissions. In considering the exercise of its discretion to cancel the visa, the Tribunal weighed several factors, including the purpose of a student visa, the applicant's significant period of non-enrolment, and the substantial nature of the breach. The Tribunal found that the applicant had not been fulfilling the purpose of their travel and stay in Australia for a significant period. As the applicant had provided no information regarding hardship that might be caused by cancellation, this factor did not weigh against cancellation.

Ultimately, the Tribunal concluded that the visa cancellation was appropriate. The Tribunal affirmed the delegate's decision to cancel the applicant's visa.