1709009 (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Student (Temporary) (Class TU) visa was cancelled. 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, an Indian national, had arrived in Australia to undertake an Advanced Diploma of [Field 1] at [College 1], having previously completed relevant studies in India.

The primary legal issue before the Tribunal was to determine if the applicant had complied with condition 8202 of her visa. Specifically, the Tribunal had to ascertain whether the applicant was enrolled in a registered course from January 2017 onwards, as her enrolment at [College 1] had been cancelled in January 2017 following a criminal charge in December 2016. The Tribunal also had to consider whether, even if a breach was found, there were compelling reasons to exercise discretion and not cancel the visa.

The Tribunal found that the applicant had not complied with condition 8202(2) of the Regulations, as she was not enrolled in a registered course from 6 January 2017 until at least 18 April 2017. While acknowledging the applicant's desire to study and her explanation regarding the timing of events and the criminal proceedings, the Tribunal concluded that these were matters for the exercise of discretion. The Tribunal noted that the applicant had not provided sufficient evidence of actively seeking re-enrolment after her criminal charges were dismissed in April 2017, and that her stated purpose for remaining in Australia was solely to re-enrol at [College 1]. Considering the circumstances as a whole, including the applicant's non-compliance with visa conditions and the lack of compelling reasons to remain in Australia, the Tribunal affirmed the decision to cancel the applicant's visa.