Aqil (Migration)

The Administrative Appeals Tribunal considered the case of an applicant, a citizen of Pakistan, whose Student (Temporary) (Class TU) visa was subject to cancellation. The dispute arose because the applicant was not enrolled in a registered full-time course of study, which constituted a potential breach of condition 8202 of the Migration Regulations 1994 (Cth). The Department of Home Affairs issued a Notice of Intention to Consider Cancellation (NOICC) after PRISMS records indicated the applicant's enrolment in a Master of Business Analytics course had been cancelled due to non-commencement, with no subsequent enrolment recorded.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of his visa. This condition requires a student visa holder to be enrolled in a full-time registered course and to maintain enrolment in a course that leads to a qualification at the same or higher level than the one for which the visa was granted. If a breach was found, the Tribunal also had to consider whether to exercise its discretion to cancel the visa, weighing the grounds for cancellation against any reasons not to cancel.

The Tribunal found that the applicant had not complied with condition 8202(2)(a) as he had not commenced his initial course and had not maintained enrolment in a registered full-time course. While the applicant provided reasons for his non-compliance, including culture shock, the death of his grandfather, and personal illness, the Tribunal noted that he did not undertake any study while holding the student visa. Furthermore, the Tribunal considered the applicant's application for a Temporary Activity (subclass 408) visa shortly before the NOICC was issued, finding it unlikely that he was unaware this visa could allow him to remain and work in Australia without studying. The Tribunal concluded that the grounds for cancelling the visa outweighed the applicant's reasons for seeking its reinstatement.

Consequently, the Tribunal affirmed the decision to cancel the applicant's Class TU visa.