1907896 (Migration)

This matter concerned an application to review the cancellation of the applicant's Student (Temporary) (Class TU) visa (Subclass 500). The applicant had been granted the visa on 25 July 2017. The Department of Home Affairs had cancelled the visa on 25 March 2019, on the basis that the applicant was not enrolled in a full-time registered course. The Administrative Appeals Tribunal was required to determine whether the applicant had breached condition 8202 of the Migration Regulations 1994 and, if so, whether the decision to cancel the visa should be affirmed.

The primary legal issue was whether the applicant had complied with condition 8202 of the Migration Regulations 1994, which requires a student visa holder to be enrolled in a full-time registered course and to maintain enrolment in a course that leads to a qualification at the same or a higher Australian Qualifications Framework level than the original course. If a breach was found, the Tribunal also had to consider whether to exercise its discretion to cancel the visa. The applicant contended that various personal circumstances, including family health issues, the death of relatives, a relationship breakdown, and mental health concerns, had impacted his ability to study.

The Tribunal found that the applicant had not complied with condition 8202(2)(a) of the Regulations. The applicant had failed to maintain enrolment in a full-time registered course, evidenced by his poor academic results, changes in course of study to lower-level qualifications, and significant periods of non-enrolment. While acknowledging the difficult circumstances the applicant had faced, the Tribunal found that these did not sufficiently explain his prolonged failure to complete any tertiary studies in Australia over a period of more than five years. The Tribunal also noted inconsistencies in the applicant's evidence, leading to a lack of satisfaction regarding its reliability.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's visa, concluding that the applicant had breached a condition of his visa and that cancellation was the appropriate outcome.