BRAR (Migration)

The Administrative Appeals Tribunal considered the case of BRAR, an applicant whose Student (Temporary) (Class TU) visa, Subclass 573, was cancelled. The dispute centred on whether the applicant had breached condition 8202 of the Migration Regulations 1994, which requires a student visa holder to remain enrolled in a registered course and maintain satisfactory course progress and attendance. The applicant had changed from their original higher education course to related vocational courses, which the Department considered a breach of the visa conditions.

The primary legal issue before the Tribunal was to determine if the applicant had complied with condition 8202 of their visa. Specifically, the Tribunal had to ascertain whether the applicant remained enrolled in a registered course commensurate with the requirements of their Subclass 573 visa. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, having regard to the circumstances of the case.

The Tribunal found that the applicant had conceded they did not comply with the visa conditions regarding their student enrolment, as they were not enrolled in a course of study that met the terms of their visa. Consequently, the ground for cancellation under s.116(1) of the Migration Act 1958 was established. In exercising its discretion, the Tribunal considered the applicant's original purpose of study, their claims of ill health preventing continued study, and their subsequent completion of a Diploma of Business and enrolment in an Advanced Diploma, with an offer for a Bachelor of Business. Despite these developments, the Tribunal was not satisfied that the applicant had demonstrated a compelling need to remain in Australia, nor had they provided specific future plans beyond a general desire for education and employment. While acknowledging the applicant's compliance with other visa conditions and the potential hardship of cancellation, the Tribunal concluded that these factors did not outweigh the breach of the enrolment condition.

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