Yun (Migration)

This matter concerned an appeal by the applicant, Ms Yun, against the cancellation of her Subclass 500 (Student) visa. The visa was cancelled by the Department of Home Affairs on the grounds that Ms Yun had breached condition 8202 of the Migration Regulations 1994 by not maintaining enrolment in a registered course at the same or a higher Australian Qualifications Framework (AQF) level than that for which her visa was originally granted. The Tribunal was required to consider whether Ms Yun had indeed breached this condition and, if so, whether to exercise its discretion to cancel the visa.

The central legal issue was whether Ms Yun had complied with condition 8202(2)(b) of her visa, which mandates maintaining enrolment in a registered course that, upon completion, will provide a qualification at the same or a higher AQF level than the course for which the visa was granted. Ms Yun's visa was granted for a Master of Architecture (AQF Level 9). She subsequently enrolled in a Diploma of Creative Industries (AQF Level 5) and then a Bachelor of Design (AQF Level 7). The Department cancelled her visa on the basis that her enrolment in courses below AQF Level 9 constituted a breach of this condition.

The Tribunal found that Ms Yun had not complied with condition 8202(2)(b) for a period of 10 months and 10 days. However, in considering the exercise of discretion to cancel the visa, the Tribunal gave substantial weight to Ms Yun's stated intention to study architecture in Australia, her consistent enrolment and study since her arrival, and her subsequent obtaining of Confirmation of Enrolment for a Bachelor of Design and Master of Architecture. The Tribunal accepted that Ms Yun travelled to Australia with the genuine intention to study and that she intended to complete these higher-level courses to work in her family's architecture business.

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