Batan (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Student (Temporary) (Class TU) visa. The applicant, a citizen of India, had arrived in Australia in February 2014 to undertake a package of courses. His initial enrolment in a Diploma of Business and Bachelor of Business (Management) was terminated when he failed his examinations and decided to change course. He subsequently enrolled in a series of hospitality courses, but his Bachelor of Business (Hotel Management) provider, Australian School of Management (ASM), closed down in May 2017. The applicant was unable to secure alternative enrolment and ceased active studies by July 2017, remaining in Australia until his visa was cancelled in April 2019.

The primary legal issue before the Tribunal was whether the applicant had complied with the conditions of his visa, specifically condition 8202 of the Migration Regulations 1994, which requires a student visa holder to be enrolled in a registered course. The Tribunal was also required to consider whether, having found a breach of a visa condition, it should exercise its discretion to cancel the visa. The applicant had not responded to the Notice of Intention to Consider Cancellation and provided limited evidence to the Tribunal.

The Tribunal found that the applicant had not been enrolled in a registered course after 8 February 2018, thus failing to comply with condition 8202(2). While acknowledging that the closure of ASM was a circumstance beyond the applicant's control, the Tribunal noted that he had ample opportunity to find alternative enrolment after May 2017. The Tribunal also rejected the applicant's assertion that he was prevented from finding further enrolments due to an inability to obtain results from Stanley College. Considering the substantial period of non-compliance, which was just short of 14 months, and the applicant's unclear purpose for remaining in Australia after ceasing active studies, the Tribunal concluded that the visa should be cancelled.

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