Xia (Migration)

This matter concerned an appeal to the Administrative Appeals Tribunal by an applicant whose Student (Temporary) (Class TU) visa, subclass 500, had been cancelled by the Department of Home Affairs. The cancellation was based on the applicant's alleged failure to comply with condition 8202 of the Migration Regulations 1994 (Cth), which requires a student visa holder to maintain enrolment in a registered course at the same or a higher Australian Qualifications Framework (AQF) level as the course for which the visa was granted. The applicant contended that there were compelling reasons for his actions and that the cancellation decision should be set aside.

The Tribunal was required to determine whether the applicant had breached condition 8202 of the Migration Regulations 1994. Specifically, the Tribunal had to ascertain if the applicant had maintained enrolment in a registered course at the same or a higher AQF level than his Master of Commerce course, for which the visa was originally granted. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, taking into account the applicant's stated reasons for wishing to remain in Australia, including personal reasons and a desire to continue studying.

The Tribunal found that the applicant had not complied with condition 8202(2)(b) of the Regulations, as he had not maintained enrolment in a full-time registered course at the same or a higher AQF level from August 2018 until the delegate's decision in November 2019. The applicant's subsequent enrolments in vocational and English language courses, and his lack of memory regarding these, along with his failure to complete an English Language Programs course, led the Tribunal to conclude that he did not have a compelling reason to remain in Australia for the purpose of study. The Tribunal noted that the applicant had not provided evidence of any further course enrolments in over two and a half years.

Consequently, the Tribunal affirmed the decision to cancel the applicant's visa.