Zhou (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Student (Temporary) (Class TU) visa, Subclass 573 Higher Education Sector. The applicant, a citizen of China, had been granted the visa on 4 November 2013. The Department of Home Affairs had notified the applicant of its intention to consider cancelling his visa due to a suspected breach of condition 8202 of Schedule 8 to the Migration Regulations 1994, which requires the holder to be enrolled in a registered course. The applicant responded, admitting he had missed the enrolment deadline due to not realising its importance, and the delegate subsequently cancelled his visa. The applicant sought review of this decision.

The primary legal issue before the Tribunal was whether the applicant had complied with condition 8202 of his visa. If a breach of this condition was established, the Tribunal was then required to consider whether to exercise its discretion to cancel the visa under section 116(1) of the Migration Act 1958. The Tribunal had access only to the information and evidence contained on the Departmental and Tribunal files, as the applicant did not attend the hearing.

The Tribunal found that the applicant had indeed breached condition 8202(2)(a) of his visa, as he had not been enrolled in a registered course since 7 July 2016, a period exceeding nine months at the time of the delegate's decision. The Tribunal considered this a significant and serious breach, given the purpose of a student visa and the extended period of non-enrolment. In exercising its discretion to cancel the visa, the Tribunal noted the applicant's admission of not appreciating the importance of timely enrolment and his failure to provide further information or respond to the Tribunal. The Tribunal found no extenuating circumstances, compassionate grounds, or hardship that would prevent cancellation, particularly as the applicant had voluntarily departed Australia and no family members were affected. The Tribunal concluded that the considerations favouring cancellation outweighed those in favour of allowing the visa to stand.

Accordingly, the Tribunal affirmed the decision to cancel the applicant's visa.