Amit Kumar (Migration)

This matter concerned an application by Amit Kumar for review of a decision to cancel his Subclass 573 Higher Education Sector visa. The applicant's visa was cancelled on the basis that he had breached condition 8202 of the Migration Regulations 1994 by ceasing enrolment in a registered course. The Tribunal was required to determine whether the applicant had complied with condition 8202 and, if not, whether to exercise its discretion to cancel the visa.

The Tribunal first considered whether the applicant had breached condition 8202. This condition requires a student visa holder to be enrolled in a registered course, achieve satisfactory course progress, and maintain satisfactory attendance. The applicant did not dispute that he was not enrolled in a registered course for the period identified by the Department, and therefore had not complied with condition 8202(2).

Despite the breach, the Tribunal considered whether to exercise its discretion to cancel the visa. The Tribunal had regard to the applicant's original intention to study a Bachelor degree in Australia, the significant financial investment made by his family, and his current enrolment in a degree course. While the Tribunal was not satisfied that the applicant had a compelling need to remain in Australia, it noted that he had not breached other visa conditions and acknowledged the financial and emotional hardship that cancellation would cause his family. The Tribunal also considered that the circumstances leading to the breach, including difficulties in re-enrolling, were not entirely beyond the applicant's control, but weighed the overall circumstances in favour of not cancelling the visa.

Ultimately, the Tribunal concluded that the visa should not be cancelled. It set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 573 visa.