ZHANG (Migration)

This matter concerned an appeal by an applicant, ZHANG, against the cancellation of her Student (Temporary) (Class TU) visa, specifically a Subclass 573 Higher Education Sector visa. The visa was cancelled by the Department on the grounds that she had breached condition 8202 of the Migration Regulations 1994. The applicant sought review of this decision before the Tribunal.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of her visa. This condition requires a visa holder to be enrolled in a registered course of study, to have satisfactory course progress, and to have satisfactory course attendance. If a breach of this condition was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa.

The Tribunal found that the applicant had indeed breached condition 8202(2) as she was not enrolled in a registered course of study for a significant period between November 2015 and November 2016, a fact confirmed by PRISMS records and admitted by the applicant. In considering the discretion to cancel the visa, the Tribunal had regard to various factors, including the applicant's stated purpose for travel, her compliance with other visa conditions, the potential hardship, the circumstances of the breach, and her past conduct. While acknowledging the applicant's serious personal difficulties, including pregnancy complications, a termination, and her husband's departure, which she argued led to her inability to study, the Tribunal found these did not outweigh the significance of the breach. The Tribunal also noted that the applicant had departed Australia in July 2018, meaning there was no current information suggesting significant hardship would be caused by the cancellation.

Ultimately, the Tribunal affirmed the delegate's decision to cancel the applicant's visa. The Tribunal concluded that the applicant had not complied with condition 8202(2) and, after considering the relevant discretionary factors, determined that the cancellation of the visa was appropriate.