Bhat (Migration)

This matter concerned an appeal to the Tribunal regarding the cancellation of the applicant's Student (Temporary) (Class TU) visa, specifically a Subclass 573 Higher Education Sector visa. The core of the dispute revolved around whether the applicant had breached condition 8202 of the Migration Regulations 1994 by failing to maintain enrolment in a registered course of study for a significant period. The Tribunal was tasked with determining if such a breach had occurred and, if so, whether to affirm the delegate's decision to cancel the visa.

The legal issues before the Tribunal were twofold: first, whether the applicant had contravened condition 8202 of the Migration Regulations 1994, which mandates enrolment in a registered course, and second, if a breach was established, whether the Tribunal should exercise its discretion to cancel the visa. The applicant had not been enrolled in a registered course for almost three years prior to the delegate's decision. The Tribunal also considered the applicant's stated reasons for remaining in Australia, including financial incentives and significant personal ties, and whether there was a compelling need for her to remain.

The Tribunal found that the applicant had indeed breached condition 8202(2) of the Migration Regulations 1994, as she had not been enrolled in a registered course from 25 October 2016 until the delegate's decision on 28 July 2017. In considering the exercise of its discretion to cancel the visa, the Tribunal had regard to the applicant's stated purpose of study to support her family in Nepal, her academic difficulties, and personal distress following the loss of her brother. However, the Tribunal noted the extended period of non-enrolment, the lack of any actions taken by the applicant to remedy the breach, and concluded that there was no compelling need for her to remain in Australia. Consequently, the Tribunal affirmed the decision to cancel the applicant's visa.