ZHANG (Migration)

This matter concerned an appeal by Mr. Zhang against the cancellation of his Student (Temporary) (Class TU) visa, Subclass 572. The applicant had been granted the visa on 27 May 2016. The Department of Immigration and Border Protection had cancelled the visa on the ground that the applicant was not enrolled in a registered course, thereby breaching a condition of his visa. The Administrative Appeals Tribunal was required to determine whether the applicant had breached a condition of his visa and, if so, whether the cancellation decision should be affirmed.

The primary legal issue before the Tribunal was whether Mr. Zhang had complied with condition 8202 of Schedule 8 to the Migration Regulations 1994. Specifically, the Tribunal had to ascertain if the applicant was enrolled in a registered course of study as required by condition 8202(2). If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa under section 116(1) of the Migration Act 1958.

The Tribunal found that the applicant's enrolment in a Diploma of Business course was cancelled on 23 January 2017 due to non-commencement of studies. PRISMS records confirmed that the applicant was not enrolled in a registered course from that date until the visa cancellation on 18 October 2017. This constituted a breach of condition 8202(2). In considering the discretion to cancel, the Tribunal noted the applicant had been in Australia for over nine years on multiple student visas and had completed several courses. However, since November 2014, he had not completed any further studies and had multiple cancelled enrolments. The Tribunal concluded that the applicant's prolonged period of non-enrolment, without adequate explanation, indicated an intention to remain in Australia without intending to study, which weighed heavily in favour of affirming the cancellation.

The Tribunal affirmed the decision to cancel the applicant’s visa.