Aslam (Migration)

This matter concerned an appeal by the applicant, a citizen of Pakistan, against the cancellation of his Student (Temporary) (Class TU) visa, subclass 573 (Higher Education Sector). The applicant had been granted the visa to undertake a Diploma of Information Technology and subsequently a Bachelor of Information Technology. The Department of Home Affairs had issued a Notice of Intention to Consider Cancellation due to the applicant's failure to maintain enrolment in a registered course, a breach of a visa condition. The Administrative Appeals Tribunal was required to determine whether the applicant had indeed breached his visa conditions and, if so, whether the discretion to cancel the visa should be exercised.

The primary legal issue before the Tribunal was whether the applicant had complied with the conditions of his visa, specifically the requirement to be enrolled in a registered course. The Tribunal also had to consider the exercise of discretion regarding the cancellation of the visa, taking into account the applicant's circumstances and the purpose of the visa grant. The applicant contended that financial difficulties, stemming from a family dispute in Pakistan, prevented him from paying his tuition fees, leading to the cancellation of his enrolment. He also expressed a desire to continue his studies in Australia and argued that cancellation would result in hardship.

The Tribunal found that the applicant had been in continuous breach of condition 8202(2) of his visa for approximately seven months, from 21 May 2018 to 22 January 2019, as he was not enrolled in a registered course of study during that period. In considering the discretion to cancel the visa, the Tribunal had regard to the applicant's submissions, including his financial difficulties and his stated intention to study at Victoria University. However, the Tribunal noted that the applicant had not provided any documentation to support his claims and had not communicated with his educational institution about his inability to pay fees or sought to defer his studies. Ultimately, the Tribunal affirmed the decision to cancel the applicant's visa.