2204340 (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Student (Temporary) (Class TU) visa, Subclass 573, held by an Indian national. The applicant had been granted the visa to study in Australia but subsequently ceased enrolment in his registered course and changed to diploma courses. The visa was cancelled by the Department of Immigration and Border Protection on the grounds that the applicant had breached a condition of his visa. The applicant sought review of this decision before the Tribunal.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (Cth). Specifically, the Tribunal had to determine if the applicant had maintained enrolment in a registered course that would provide a qualification at the same or a higher level than the course for which the visa was granted, and if he had achieved satisfactory course progress and attendance. If a breach 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)(a) of his visa, as he was not enrolled in a registered course of study from 28 April 2016 until the date of the visa cancellation on 2 March 2017. This constituted a breach of a visa condition, making the visa liable for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth). In considering the discretion to cancel, the Tribunal noted the applicant's stated reasons for ceasing enrolment, including financial hardship and lifestyle choices leading to gambling losses, which he accepted were within his responsibility. The Tribunal found that the applicant's failure to re-enrol for over ten months, coupled with his indifference to undertaking study and the fact that his priorities in Australia had changed, weighed against exercising discretion in his favour. The Tribunal also considered his subsequent period on a bridging visa without work rights, which he claimed prevented him from affording tuition.

The Tribunal affirmed the decision to cancel the applicant's visa.