Arab (Migration)

This matter concerned an application to affirm the decision to cancel the applicant's Student (Temporary) (Class TU) visa, subclass 573 (Higher Education Sector). The applicant had been granted the visa on 12 May 2014. The Department of Immigration and Border Protection issued a Notice of Intention to Consider Cancellation on 5 September 2016, alleging the applicant had breached condition 8202 of Schedule 8 to the Migration Regulations 1994 by not being enrolled in a registered course of study between 18 March 2016 and 4 September 2016.

The primary legal issue before the Tribunal was whether the applicant had complied with condition 8202 of the Migration Regulations 1994, specifically subclause (2)(a), which requires a student visa holder to be enrolled in a registered course. If a breach was found, the Tribunal was then required to consider whether to exercise its discretion to cancel the visa under section 116(1) of the Migration Act 1958.

The Tribunal found that the applicant had not been enrolled in a registered course for the specified period, thereby failing to comply with condition 8202(2)(a). In considering the exercise of discretion, the Tribunal had regard to the applicant's stated intention to study in Australia, noting his completion of various courses and ongoing enrolment in a Bachelor of Commerce. However, the Tribunal also noted the significant gap in enrolment and the potential hardship to the applicant and his parents if the visa were cancelled. Despite acknowledging this hardship, the Tribunal concluded that the circumstances as a whole warranted the cancellation of the visa. The Tribunal affirmed the decision to cancel the applicant's visa.