Abeysinghe (Migration)

This matter concerned the review of a decision to cancel the visa of the first applicant, a holder of a Student (Temporary) (Class TU) Subclass 573 Higher Education Sector visa. The second applicant was also involved, though the Tribunal ultimately found it had no jurisdiction concerning that party. The core dispute revolved around whether the first applicant had breached a condition of her visa, leading to its cancellation.

The Tribunal was required to determine whether the first applicant had complied with condition 8202 of the Migration Regulations 1994. Specifically, this involved assessing whether she was enrolled in a registered course of study, as mandated by subclause 8202(2). If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, taking into account the circumstances of the breach and any other relevant matters.

The Tribunal found that the first applicant had breached condition 8202(2) as she had not been enrolled in a registered course of study since 15 August 2016, a fact supported by information from the Provider Registration and International Student Management System (PRISMS) and an email from Charles Sturt University. The applicant had not provided a response to the Notice of Intention to Consider Cancellation. In exercising its discretion, the Tribunal noted that the purpose of a student visa is to enable study, a purpose not being fulfilled by the applicant. It found no exceptional circumstances or extenuating reasons for the non-compliance, nor any hardship that would result from cancellation, given the applicant’s failure to engage with the process.

Consequently, the Tribunal affirmed the decision to cancel the first applicant’s visa. The Tribunal also stated that it had no jurisdiction with respect to the second applicant.