2302130 (Migration)

This matter concerned an application for review of a decision by the Department of Home Affairs to cancel the applicant's Student (Temporary) (Class TU) visa, subclass 500. The applicant, a citizen of Colombia, was granted the visa on 13 October 2021, with a validity until 21 July 2023, subject to conditions including condition 8202. The Department issued a Notice of Intention to Consider Cancellation (NOICC) on 7 November 2022, indicating that the applicant was not enrolled in a registered course of study, as recorded by the Provider Registration and International Student Management System (PRISMS). The applicant responded with submissions detailing personal difficulties, including job loss due to the COVID-19 pandemic, exhaustion of savings, and health issues, supported by letters from medical and social work professionals. The delegate, however, was not persuaded that these submissions adequately addressed the 13-month period of non-enrolment, particularly given that COVID-19 restrictions had ended prior to the commencement of this non-enrolment period. The applicant subsequently applied to the Tribunal for a review of the cancellation decision.

The primary legal issue before the Tribunal was whether the applicant had complied with condition 8202 of his visa, specifically whether he had maintained enrolment in a registered course of study. The Tribunal was also required to consider whether, having found a breach of a visa condition, the discretion to cancel the visa should be exercised in the applicant's favour, taking into account all relevant circumstances. The applicant's stated purpose for being in Australia was to undertake study, and the Tribunal had to assess whether his actions and submissions demonstrated a genuine intention to pursue his studies or whether other factors, such as a desire to remain in Australia for employment opportunities, outweighed the purpose of study.

The Tribunal affirmed the decision to cancel the applicant's visa. It found that the applicant had not complied with condition 8202(2)(a) of the Migration Regulations 1994, as he had not been enrolled in a registered course for a significant period. While acknowledging the applicant's personal difficulties, including health concerns and financial hardship, the Tribunal noted that the period of non-enrolment extended beyond the cessation of COVID-19 restrictions and that the applicant had not taken steps to re-enrol after receiving the NOICC. The Tribunal considered the applicant's history of holding student visas since 2015 and his admission of only completing English courses, alongside his expressed desire to remain in Australia for work opportunities and potential employer sponsorship. Despite the applicant's claims of seeking new enrolment options and his intention to study a different subject, the Tribunal concluded that the circumstances did not warrant the exercise of discretion to set aside the cancellation.