WANG (Migration)

This matter concerned an appeal by the applicant, Ms. Wang, against the cancellation of her Student (Temporary) (Class TU) (Subclass 500) visa. The visa was cancelled by the Department of Home Affairs on the grounds that the applicant was not enrolled in a registered course, thereby breaching condition 8202 of the Migration Regulations 1994. The applicant had been granted the visa to study English and subsequently undertake a Master’s degree in Construction Project Management at the University of New South Wales.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of her visa, which requires a student visa holder to be enrolled in a full-time registered course and maintain that enrolment. If a breach was found, the Tribunal was then required to consider whether to exercise its discretion to cancel the visa, notwithstanding the breach. The applicant’s failure to achieve the required English language proficiency scores for her Master’s course, despite multiple attempts and alternative study methods, led to her prolonged period of non-enrolment.

The Tribunal found that the applicant had indeed not been enrolled in a registered course between July 2018 and the date of the visa cancellation in September 2019, constituting a breach of condition 8202. However, in considering the exercise of discretion, the Tribunal had regard to the applicant’s genuine intention to study in Australia, evidenced by her offer letters and deposit payment for the Master’s program. While acknowledging the significant period of non-enrolment, the Tribunal accepted that the applicant was actively pursuing her English language studies with the belief she was complying with her visa obligations. The Tribunal concluded that, on balance, the circumstances did not warrant the cancellation of the visa.

Consequently, the Tribunal set aside the decision to cancel the applicant’s Subclass 500 (Student) visa and substituted a decision not to cancel it.