CARELLA (Migration)

This matter concerned an appeal by the applicant, a holder of a Student (Temporary) (Class TU) visa, Subclass 572, against the decision to cancel his visa. The applicant had ceased enrolment in his registered courses, which led to the delegate's decision to cancel his visa under section 116(1) of the Migration Act 1958. The applicant sought to have this cancellation decision affirmed by the Tribunal, citing financial hardship due to a work injury, denial of insurance, and underpayment by a previous employer. He also argued he was a genuine student with an intention to remain permanently in Australia, highlighting his long residence, established life, and lack of prospects in Italy.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of Schedule 8 to the Migration Regulations 1994, and if so, whether the visa cancellation should be affirmed. Condition 8202 requires a student visa holder to be enrolled in a registered course and to maintain satisfactory course progress and attendance. The applicant's visa was cancelled on the basis that he was not enrolled in a registered course from 2 November 2016, and consequently, was onshore without a valid Confirmation of Enrolment.

The Tribunal found that the applicant had indeed breached condition 8202(2) by not being enrolled in a registered course. In considering whether to affirm the cancellation, the Tribunal had regard to the applicant's stated reasons for non-compliance, including his work injury and financial difficulties. However, the Tribunal also noted the applicant's admissions that he was "not a very good student" and that a student visa was "not anymore the way I want to get to stay over here." Furthermore, the applicant expressed a desire for permanent residency and to continue his life in Australia, indicating a shift in his original purpose for obtaining the visa, which was to study. The Tribunal concluded that the applicant's intention had moved from pursuing educational qualifications to seeking permanent residency, and that he did not wish to continue his studies.

Consequently, the Tribunal affirmed the decision to cancel the applicant's Subclass 572 Vocational and Training Sector visa.