ATWAL (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Student (Temporary) (Class TU) visa, subclass 500, held by the applicant. The dispute centred on whether the applicant had breached condition 8202 of the Migration Regulations 1994, which requires a student visa holder to be enrolled in a registered course. The applicant had not responded to a Notice of Intention to Consider Cancellation, and his visa was subsequently cancelled by the delegate.

The primary legal issue before the Tribunal was to determine if the applicant had complied with condition 8202 of his Student visa. This condition mandates enrolment in a registered course and satisfactory course progress and attendance. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, taking into account all relevant circumstances.

The Tribunal found that the applicant had indeed not been enrolled in a registered course between 24 April 2017 and 10 November 2017, thus breaching condition 8202(2)(a). However, in considering the exercise of its discretion, the Tribunal gave significant weight to the applicant's compelling need to remain in Australia to complete his Bachelor degree. It accepted that he was a genuine student with a strong commitment to his studies, which had been significantly impacted by the recent death of his wife and his subsequent mental health issues. The Tribunal also noted his desire to potentially change his course to study mental health, motivated by his personal experiences, and his concerns about his safety if he returned to India due to threats from his late wife's family.

Consequently, the Tribunal set aside the decision to cancel the applicant's visa.