Boparai (Migration)

The Administrative Appeals Tribunal affirmed the decision to cancel the applicant's Student (Temporary) (Class TU) visa, subclass 573 (Higher Education Sector). The applicant, Mr. Boparai, had failed to maintain enrolment in a registered course, a condition of his visa. The Tribunal considered the exercise of discretion regarding the cancellation, weighing factors for and against it.

The primary legal issue before the Tribunal was whether it was open to the Tribunal to exercise its discretion to set aside the delegate's decision to cancel Mr. Boparai's visa. This involved assessing the materiality of Mr. Boparai's failure to maintain enrolment and considering the various personal circumstances presented by the applicant.

The Tribunal acknowledged Mr. Boparai's difficult personal circumstances, including the death of his father and his own physical health issues. However, it found that these factors did not sufficiently outweigh the seriousness of his breach of visa conditions. The Tribunal noted that Mr. Boparai had enrolled in a non-registered course on the advice of a migration agent, and that the agent's delays in providing information had impacted Mr. Boparai's ability to respond to the Tribunal's requests. Crucially, Mr. Boparai only enrolled in a registered course after receiving notice of the intention to consider cancellation. The Tribunal concluded that the discretion to set aside the cancellation was not enlivened, and therefore affirmed the delegate's decision.