Chaudhary (Migration)

This matter concerned an appeal to the Administrative Appeals Tribunal (the Tribunal) regarding the cancellation of Mr Raj Kumar Chaudhary's Student (Temporary) (Class TU) visa, Subclass 572. The visa was cancelled on the grounds that Mr Chaudhary had breached condition 8202 of Schedule 8 to the Migration Regulations 1994. The Tribunal affirmed the decision to cancel the visa.

The primary legal issue before the Tribunal was whether Mr Chaudhary had complied with condition 8202 of his visa. This condition requires a visa holder to be enrolled in a registered course, achieve satisfactory course progress, and maintain satisfactory course attendance. The Tribunal was also required to consider whether to exercise its discretion to cancel the visa, having found a breach of a condition.

The Tribunal found that Mr Chaudhary had breached condition 8202(2) because he was not enrolled in a registered course in Australia and had departed Australia on 1 November 2019. The Tribunal noted that Mr Chaudhary did not participate in the hearing, which prevented it from obtaining up-to-date information regarding his circumstances and the factors relevant to the exercise of discretion, such as the purpose of his stay, hardship, and the circumstances surrounding the breach. While the Tribunal acknowledged that the cancellation of Mr Chaudhary's visa would result in the automatic cancellation of his dependent's visa, it held that it had no jurisdiction to make a decision regarding the dependent's visa as it was cancelled by operation of law under s.140(1) of the Act, not by a decision of the Minister or the Tribunal. Balancing the established breach against the lack of information to mitigate the cancellation, the Tribunal affirmed the decision to cancel Mr Chaudhary's visa.