Ahmad (Migration)

This matter concerned an appeal to the Tribunal regarding the cancellation of the applicant's Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa. The applicant had been granted the visa on 22 July 2013. The core of the dispute was whether the applicant had breached condition 8202 of Schedule 8 to the Migration Regulations 1994, which requires a visa holder to be enrolled in a registered course of study. The applicant's visa was cancelled on the basis that he had not been enrolled in a registered course since 3 September 2015.

The Tribunal was required to determine two primary issues: first, whether the applicant had breached condition 8202(2)(a) of his visa by failing to be enrolled in a registered course; and second, if a breach was established, whether the Tribunal should exercise its discretion to cancel the visa, considering the circumstances presented by the applicant. The applicant acknowledged that he had not been enrolled in a registered course since 3 September 2015 and therefore admitted to breaching condition 8202(2)(a), establishing a ground for cancellation under section 116(1)(b) of the Migration Act 1958.

In considering whether to exercise its discretion to cancel the visa, the Tribunal assessed the applicant's submissions regarding emotional distress, family deaths, and a desire to complete his studies. The applicant explained that personal difficulties, including questioning his religion and experiencing insomnia and anxiety, had impacted his ability to focus on his studies. He also mentioned the death of a father figure uncle and the expectations of his parents. However, the Tribunal placed little weight on this information, noting the applicant's vagueness in his responses and his inability to provide evidence for his claims, such as a death certificate. The Tribunal also considered the applicant's PRISMS record, which indicated a pattern of cancelling enrolments, although the applicant disputed this characterisation, attributing it to applying for other visas. Ultimately, the Tribunal was not satisfied that the applicant's circumstances warranted the exercise of discretion to not cancel the visa.

The Tribunal concluded that the applicant had not complied with condition 8202(2) of his visa and that his circumstances did not justify retaining the visa. Accordingly, the Tribunal affirmed the decision to cancel the applicant's Student (Temporary) (Class TU) Higher Education Sector visa (Subclass 573).