1703485 (Migration)

The applicant, Tigiilagi Eteuati, sought review of the decision to cancel his Student (Temporary) (Class TU) visa, subclass 573. The dispute centred on whether the applicant had breached condition 8202 of the Migration Regulations 1994, which requires a student visa holder to be enrolled in a registered course and to maintain satisfactory course progress and attendance. The applicant's visa was cancelled on the basis that he was not enrolled in a registered course for significant periods between September 2016 and February 2017, and also for earlier periods in 2014 and 2015.

The primary legal issue before the Tribunal was whether the applicant had complied with condition 8202 of the Migration Regulations 1994. This condition mandates that a student visa holder must be enrolled in a registered course and achieve satisfactory course progress and attendance, as certified by their education provider. If a breach of this condition was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa.

The Tribunal found that the applicant had not complied with condition 8202(2) as he was not enrolled in a registered course during the specified periods, a fact conceded by the applicant. In considering the exercise of discretion to cancel the visa, the Tribunal had regard to the applicant's submissions and government policy. The applicant admitted to working full-time since his arrival in Australia in 2011, not applying himself to his studies, and maintaining enrolment in courses primarily to give the appearance of being a genuine student while working. He also admitted to receiving advice from dishonest individuals to maintain his enrolment to continue working full-time. Furthermore, the applicant faced pending criminal charges related to his business operations.

The Tribunal affirmed the decision to cancel the applicant's visa, concluding that, considering all the circumstances, the visa should be cancelled.