Zhu (Migration)

The Administrative Appeals Tribunal (AAT) considered a matter involving an applicant whose Student (Temporary) (Class TU) visa, subclass 573 Higher Education Sector, was subject to cancellation. The dispute centred on whether the applicant had breached a condition of their visa, leading to the potential cancellation of their visa.

The primary legal issue before the Tribunal was to determine whether the applicant had failed to comply with visa condition 8202, as stipulated by the Migration Regulations 1994. This condition requires the holder of a student visa to be enrolled in a registered course and to achieve satisfactory course progress and attendance, unless specific exceptions apply. The Tribunal had to ascertain if the evidence presented demonstrated a breach of these requirements, which would then engage the power to cancel the visa under section 116(1)(b) of the Migration Act 1958.

The Tribunal found that the applicant had not failed to comply with visa condition 8202. The evidence did not support a finding that the applicant had not achieved satisfactory course progress or attendance. Consequently, the ground for cancellation under section 116(1)(b) did not arise. The Tribunal concluded that the correct and preferable decision was not to cancel the applicant's visa, setting aside the original decision under review and substituting a decision not to cancel. The Tribunal also noted the discontinuation of subclass 570 through 576 visas and suggested the applicant be given the opportunity to apply for a new visa under subclass 500.