CHAUDHARY (Migration)

This matter concerned an application for review of a decision to cancel the applicant’s Student (Temporary) (Class TU) visa, Subclass 573 (Higher Education Sector). The applicant, who held a visa to study in Australia, had his visa cancelled on the ground that he was not enrolled in a registered course of study. The Administrative Appeals Tribunal was required to determine whether the applicant had breached a condition of his visa and, if so, whether to exercise its discretion to cancel the visa.

The Tribunal was required to consider whether the applicant had complied with condition 8202 of the Migration Regulations 1994, which mandates enrolment in a registered course and satisfactory course progress and attendance. The applicant admitted that his enrolment had been cancelled effective from 2 March 2016, and the Tribunal found on the evidence that he was not enrolled in a registered course, thus breaching condition 8202(2). The Tribunal then considered its discretion to cancel the visa, having regard to factors including the purpose of the applicant's stay, his compliance with visa conditions, the hardship that cancellation might cause, and the circumstances in which the ground for cancellation arose.

In its reasoning, the Tribunal noted the applicant's failure to provide evidence of a compelling need to remain in Australia and attributed substantial weight to the non-compliance with visa conditions. While acknowledging potential financial and emotional hardship, the Tribunal gave these factors little weight as unavoidable consequences of cancellation. Crucially, the Tribunal found that the applicant had not established that the circumstances leading to his non-enrolment were beyond his control, particularly given his admission of a gambling problem and his failure to provide evidence for this or to take steps to rectify his enrolment issues from November 2016 onwards. The Tribunal also gave no weight to other discretionary factors due to a lack of evidence or argument from the applicant.

Ultimately, the Tribunal affirmed the decision to cancel the applicant’s visa, concluding that, considering all circumstances, the cancellation was appropriate.