Wang (Migration)

The Administrative Appeals Tribunal reviewed a decision by a delegate of the Minister for Home Affairs to cancel the applicant's Subclass 500 (Student) visa. The cancellation was based on the applicant's alleged breach of condition 8202 of the Migration Regulations 1994, specifically that the applicant was not enrolled in a full-time registered course. The applicant's visa had been cancelled due to disciplinary reasons related to a Certificate IV in Leadership and Management, which also led to the cancellation of a subsequent Diploma of Business enrolment.

The Tribunal was required to determine whether the applicant had breached condition 8202 of the Migration Regulations 1994. This condition mandates that a student visa holder must be enrolled in a full-time registered course and maintain satisfactory course progress and attendance. The applicant contended that their education provider had failed to adhere to procedural requirements, such as providing notification of the intention to report or informing them of appeal and complaint rights, potentially invalidating the enrolment cancellation.

The Tribunal reasoned that while a failure by an education provider to follow procedural requirements might be a relevant discretionary factor, it does not affect the validity of an enrolment cancellation itself. Judicial authority supports the principle that a student's non-enrolment constitutes a breach of condition 8202, irrespective of whether the education provider complied with the National Code. Considering the applicant's study history, which indicated a lack of course completion since 2014 and unsatisfactory attendance and progress in recent courses, the Tribunal found that the applicant had not complied with condition 8202(2). After considering various discretionary factors, including the applicant's study history and the circumstances of the non-enrolment, the Tribunal affirmed the decision to cancel the visa.