Bhutia (Migration)

This matter concerned the review of a decision to cancel the Subclass 573 (Higher Education Sector) student visa held by the applicant, a citizen of India. The delegate had cancelled the visa on the grounds that the applicant had breached condition 8202 of Schedule 8 to the Migration Regulations 1994 by failing to maintain enrolment in a registered course for significant periods, and that she may not be a genuine student with the primary intention of residing in Australia. The applicant acknowledged the periods of unenrolment and breach of visa conditions.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of her visa, which required her to be enrolled in a registered course, achieve satisfactory course progress, and maintain satisfactory course attendance. If a breach was established, the Tribunal was then required to consider whether to exercise its discretion to cancel the visa. The Tribunal also considered whether the applicant was a genuine student whose primary intention was to study in Australia.

The Tribunal found that the applicant had not complied with condition 8202(2) as she had been unenrolled in a registered course for substantial periods between October 2015 and April 2018. The Tribunal also found that the applicant's inability to maintain enrolment, her limited academic progress, and her reliance on others for accommodation and financial support indicated that she may not be a genuine student and that her primary intention was not study. The Tribunal concluded that the applicant's breaches of visa conditions were significant and that there were no matters that warranted the exercise of discretion not to cancel the visa.

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