CHAHAL (Migration)

The Administrative Appeals Tribunal considered the case of an Indian national holding a Student (Temporary) (Class TU) visa, subclass 573 (Higher Education Sector). The dispute arose from the cancellation of the applicant's visa on the grounds that he had not complied with condition 8202 of the Migration Regulations 1994, specifically by not being enrolled in a registered course of study for a period.

The Tribunal was required to determine whether the applicant had breached condition 8202 of the Migration Regulations 1994, which mandates enrolment in a registered course and satisfactory course progress and attendance. If a breach was found, the Tribunal then had to consider whether to exercise its discretion under section 116(1) of the Act to cancel the visa, taking into account relevant factors.

The Tribunal found that the applicant had indeed failed to comply with condition 8202(2) as he was not enrolled in a registered course between February and August 2017. However, in considering the discretion to cancel the visa, the Tribunal had regard to the applicant's compelling personal circumstances. These included the serious illness and subsequent death of his grandfather in India, with whom he had a close bond, and the resulting mental health impact, including depression and anxiety, for which he sought medical assistance. The Tribunal also noted the applicant's original purpose for coming to Australia was for study, his successful completion of prior courses, and his proximity to completing his current Bachelor of Accounting degree.

Ultimately, the Tribunal concluded that, on the totality of the circumstances, the decision to cancel the applicant's visa should be set aside. The Tribunal substituted a decision not to cancel the visa, allowing the applicant to continue his studies.