Zhao (Migration)

This matter concerned a review of the cancellation of a Student (Temporary) (Class TU) visa, Subclass 573 Higher Education Sector, held by the applicant. The Administrative Appeals Tribunal (the Tribunal) was asked to determine whether the applicant had breached a condition of her visa, and if so, whether the cancellation of her visa was appropriate.

The primary legal issue before the Tribunal was whether the applicant had complied with condition 8202 of Schedule 8 to the Migration Regulations 1994. This condition requires a student visa holder to be enrolled in a registered course, and to achieve satisfactory course progress and attendance as certified by their education provider. If a breach of this condition is found, the applicant's visa may be cancelled under section 116(1) of the Migration Act 1958.

The Tribunal found that the applicant had not complied with condition 8202(2) as she was not enrolled in a registered course. Evidence indicated that the applicant had unsatisfactory course progress and attendance with her initial English course and had commenced subsequent courses with zero attendance. The Tribunal then considered the discretion to cancel the visa, noting the applicant's failure to provide information about compelling reasons to remain in Australia, the lack of evidence of circumstances beyond her control for non-compliance, and her failure to attend the hearing. The Tribunal placed significant weight on the applicant's prolonged failure to engage in study for which her visa was granted, concluding that the breach was significant and weighed in favour of cancellation.

The Tribunal affirmed the decision to cancel the applicant's Class TU visa.