Aedla (Migration)

This matter concerned an appeal by an applicant against the cancellation of their Student (Temporary) (Class TU) visa, Subclass 573 Higher Education Sector. The applicant had enrolled in a registered course but did not commence their studies, leading to their unlawful residence in Australia. The decision under review was affirmed.

The primary legal issues before the Tribunal were whether the applicant had breached a condition of their visa, specifically condition 8531 of Schedule 8 to the Regulations which requires the holder not to remain in Australia after the end of their permitted stay, and whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was established. The Tribunal was also required to consider whether to exercise its discretion to cancel the visa, having found a breach of conditions.

The Tribunal found that the applicant had been unlawful since the cancellation of their visa on 27 November 2017, a period of nearly 18 months. This finding was based on the applicant's failure to commence studies and their subsequent unlawful residence. The Tribunal determined that the applicant had breached condition 8531. While the applicant claimed to have ceased studies due to illness, the Provider Registration and International Student Management System (PRISMS) record indicated the applicant had informed their course provider that they ceased studies. The applicant further stated they had not received a medical diagnosis or treatment for their alleged health condition, Brugada syndrome, despite referring to an ECG printout. The Tribunal considered the applicant's circumstances and relevant departmental procedures in exercising its discretion.