Baig (Migration)

The Administrative Appeals Tribunal considered whether to affirm the decision to cancel the visa of an applicant who held a student visa. 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 and to achieve satisfactory course progress and attendance.

The primary legal issue before the Tribunal was whether the applicant had complied with condition 8202 of Schedule 8 to the Migration Regulations 1994. Specifically, the Tribunal had to determine if the applicant was enrolled in a registered course, had achieved satisfactory course progress, and had maintained satisfactory course attendance. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa.

The Tribunal found that while the applicant was initially enrolled until September 2019, he was not enrolled in a registered course for a period of three months and 14 days thereafter, thus breaching condition 8202(2). Although the applicant argued that the Department's initial assessment of non-enrolment from May 2019 was incorrect, the Tribunal emphasised that continuous enrolment is a requirement. In considering the discretion to cancel the visa, the Tribunal acknowledged the applicant's original intention to study in Australia and his desire to complete an IT course. However, it was not satisfied that the applicant had a compelling need to remain in Australia, finding that prior tuition payments did not constitute such a need, and that concerns about family expectations, personal stress, and COVID-19 in his home country were not sufficient to outweigh the breach.

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