Xiang (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Student (Temporary) (Class TU) visa, subclass 573, held by Mr. Wang Xiang. The cancellation was based on the applicant's alleged breach of visa condition 8202, which requires a student visa holder to be enrolled in a registered course of study and maintain satisfactory academic progress. The applicant contended that despite a period of non-compliance, the visa cancellation should be set aside.

The primary legal issue before the Tribunal was whether the applicant had breached visa condition 8202 by failing to be enrolled in a registered course of study and, if so, whether the discretion to cancel the visa should be exercised in his favour. The Tribunal was required to consider the applicant's explanation for his non-compliance, the extent of his compliance with other visa conditions, the hardship that cancellation would cause, and the circumstances surrounding the ground for cancellation.

The Tribunal found that the applicant had indeed not been enrolled in a registered course of study from mid-2015 to the end of 2016, thus breaching condition 8202(2). However, in exercising its discretion regarding cancellation, the Tribunal gave significant weight to the applicant's compelling need to remain in Australia to complete his Bachelor of Engineering degree, a purpose for which he originally came to Australia. The Tribunal also noted that while the period of non-compliance was substantial, it was counterbalanced by the applicant's overall compliance with visa conditions during his five years in Australia. Furthermore, the Tribunal considered the financial and emotional hardship that would be caused to the applicant and his parents if the visa were cancelled, particularly given the substantial investment in his education and the potential difficulty in finding employment in China without a degree. The applicant's explanation for his non-compliance, involving a foot injury, difficulty adapting to the Australian study environment, and an addiction to internet games, was also taken into account.

Ultimately, the Tribunal determined that the circumstances warranted setting aside the decision to cancel the applicant's visa. The Tribunal concluded that the applicant had demonstrated a genuine commitment to and capacity for study since recommencing his education, achieving high academic results and showing a desire to complete his degree.