2217145 (Migration)

This matter concerned an appeal by a citizen of India against the cancellation of his subclass 500 Student visa. The applicant had arrived in Australia in November 2018 to undertake English studies, followed by a Bachelor of Engineering, which he later changed to a Bachelor of Information Technology. His enrolment was cancelled in February 2020 due to unsatisfactory course progress, and subsequently, his enrolment in a Certificate IV in Commercial Cookery was cancelled in October 2020 for non-payment of fees. He remained unenrolled until October 2022, at which point a no-study condition was placed on his visa, leading to the cancellation under review.

The primary legal issue before the Tribunal was 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 Tribunal was required to determine if the applicant's prolonged period of non-enrolment constituted a breach of this condition and, if so, whether the cancellation of his visa was a discretionary decision that should be affirmed.

The Tribunal found that the applicant had indeed breached condition 8202(2) by failing to be enrolled in a registered course of study from October 2020 until September 2022. While the applicant provided reasons for his lack of enrolment, including difficulties with study modes, homesickness, anxiety, depression, and marital issues, the Tribunal concluded that these circumstances did not constitute a compelling need for him to remain in Australia or that the breach occurred in circumstances beyond his control. The Tribunal considered the applicant's history of enrolment cancellations and the lack of a clear pathway to a qualification of value, ultimately exercising its discretion to affirm the decision to cancel the visa.