Bhardwaj (Migration)

This matter concerned an appeal by an applicant against the cancellation of their Student (Temporary) (Class TU) visa, Subclass 573 (Higher Education Sector). The applicant's visa was cancelled by the Department on the grounds that they had breached condition 8202 of Schedule 8 to the Migration Regulations 1994 by failing to be enrolled in a registered course. The applicant had arrived in Australia to study a Diploma course but discontinued their studies and moved to Canberra, remaining unenrolled for a period of nine months. The Administrative Appeals Tribunal was required to determine whether the applicant had breached condition 8202 and, if so, whether to exercise its discretion to cancel the visa.

The Tribunal found that the applicant had indeed breached condition 8202(2) of the Migration Regulations, as they were not enrolled in a registered course during the specified period. In considering the exercise of discretion to cancel the visa, the Tribunal had regard to the applicant's stated purpose for travel, which was to study, and the applicant's submissions regarding a compelling need to remain in Australia. The applicant cited family ties in Australia and difficulties studying in India due to the absence of parents and siblings. However, the Tribunal found these reasons did not demonstrate a compelling need to remain, but rather a preference. The Tribunal also considered the extent of compliance with visa conditions, noting the fundamental breach of enrolment requirements, and the degree of hardship that might be caused by cancellation. While acknowledging potential financial and emotional hardship, the Tribunal gave it limited weight.

Ultimately, the Tribunal concluded that the applicant's failure to maintain enrolment in an approved course constituted a fundamental breach of student visa requirements. Despite acknowledging some hardship, the Tribunal determined that the circumstances as a whole did not warrant the exercise of discretion to set aside the cancellation. Accordingly, the Tribunal affirmed the decision to cancel the applicant's visa.