Zhang (Migration)

This matter concerned an appeal by the applicant, Ms Zhang, against the cancellation of her Student (Temporary) (Class TU) visa, Subclass 573 (Higher Education Sector). The visa was cancelled on the grounds that she was not enrolled in a registered course, thereby breaching condition 8202 of the *Migration Regulations 1994*. The applicant had been notified of the intention to cancel her visa due to information from the Provider Registration and International Student Management System (PRISMS) indicating a lack of enrolment in a registered course since September 2016.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of the *Migration Regulations 1994*, specifically subclause (2)(a) which requires a student visa holder to be enrolled in a registered course. If a breach was established, 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 applicant had not responded to the Notice of Intention to Consider Cancellation but subsequently provided evidence of acceptance into a Bachelor of Business course at the University of Technology Sydney (UTS) for the Autumn 2017 intake, and a Diploma of Business granted in October 2016.

The Tribunal found that, based on the evidence before it, the applicant had not been enrolled in a registered course at the time of the cancellation notice, thus establishing a breach of condition 8202(2). However, in considering the exercise of discretion to cancel the visa, the Tribunal took into account the applicant's circumstances, including her youth (having arrived in Australia at 17 and being 22 at the time of the hearing), her subsequent successful pursuit of a Bachelor of Business at UTS between 2017 and 2019, and her intention to study in Australia. Despite a less than strong study history prior to 2017, the Tribunal concluded that, in light of her successful tertiary studies and other factors, the visa should not be cancelled.

Consequently, the Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel her Subclass 573 Higher Education Sector visa.