Yu (Migration)

The Administrative Appeals Tribunal considered the case of Ms. Yu, a holder of a Student (Temporary) (Class TU) Higher Education Sector (subclass 573) visa. The dispute arose from the cancellation of her visa by the Department of Home Affairs on the grounds that she had breached condition 8202 of the Migration Regulations 1994 by not being enrolled in a registered course. Ms. Yu sought to have this cancellation decision set aside.

The primary legal issue before the Tribunal was whether Ms. Yu had breached condition 8202(2) of her visa, which requires the holder to be enrolled in a registered course. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, having regard to the circumstances presented by Ms. Yu.

The Tribunal found that Ms. Yu had indeed not been enrolled in a registered course between March and August 2017, thus technically breaching condition 8202(2). However, the Tribunal accepted Ms. Yu's explanation that this breach was not due to wilful non-compliance but rather resulted from circumstances beyond her control. She had relied in good faith on the advice of her migration agent regarding the process of transferring institutions and had made genuine attempts to obtain a release letter from her initial institution, RMIT. The Tribunal also considered the significant hardship Ms. Yu would face, both emotionally and financially, if her visa were cancelled, particularly given her desire to complete her degree and join her family's business.

Ultimately, the Tribunal concluded that, in light of the mitigating circumstances surrounding the breach and the potential hardship to Ms. Yu, the decision to cancel her visa should be set aside. The Tribunal substituted a decision not to cancel her Subclass 573 visa.