Abir (Migration)

This matter concerned an appeal by a visa holder against the cancellation of his Student (Temporary) (Class TU) visa, subclass 573 (Higher Education Sector). The visa was cancelled on the grounds that the applicant had breached condition 8202 of the Migration Regulations 1994, specifically by failing to be enrolled in a registered course of study. The applicant contended that personal hardship, including family responsibilities and difficulties with educational institutions, should have led the decision-maker to exercise discretion not to cancel the visa.

The primary legal issue before the Tribunal was whether the applicant had complied with condition 8202 of the Migration Regulations 1994, and if not, whether the discretion to cancel the visa should have been exercised in his favour. Condition 8202 requires a student visa holder to be enrolled in a registered course, achieve satisfactory course progress, and maintain satisfactory attendance. The Tribunal was required to assess the evidence presented by the applicant regarding his enrolment status and the reasons for any non-compliance, as well as consider the extent of personal hardship that cancellation would entail.

The Tribunal found that the applicant had indeed breached condition 8202(2) by failing to maintain enrolment in a registered course of study for a significant period. While acknowledging the applicant's stated intentions to study in Australia and the personal difficulties he encountered, including the death of his grandmother and issues with an educational provider, the Tribunal was not satisfied that these circumstances warranted the exercise of discretion to set aside the cancellation. The Tribunal noted that the applicant had been aware of the requirement to maintain enrolment and had failed to do so for approximately 18 months. Despite the applicant's claims of hardship and potential impediments to future prospects if the visa were cancelled, the Tribunal concluded that the breach of the visa condition was sufficiently serious to affirm the cancellation decision.