Chikonko (Migration)

The Administrative Appeals Tribunal (AAT) reviewed a decision to cancel the applicant's Student (Temporary) (Class TU) visa, Subclass 573 (Higher Education Sector). The dispute arose because the applicant was not enrolled in a registered course between 21 March 2017 and 17 October 2017, a breach of his visa conditions. The applicant sought to have the cancellation decision set aside, citing personal circumstances related to his parents' separation in Zambia and his responsibilities as the primary caregiver of his Australian-born daughter.

The primary legal issue before the Tribunal was whether the applicant had failed to comply with the conditions of his visa, specifically the requirement to be enrolled in a registered course. If a breach was found, the Tribunal was then required to consider whether to exercise its discretion to cancel the visa, taking into account all relevant circumstances, including those presented by the applicant. The Tribunal also had to assess the credibility and adequacy of the applicant's explanations for his non-enrolment.

The Tribunal found that the applicant had indeed failed to comply with visa condition 8202(2) by not being enrolled in a registered course during the specified period. The applicant's explanation for this non-compliance, which centred on his parents' divorce and the resulting financial difficulties and familial disputes in Zambia, was found to be inconsistent and inadequately explained. The Tribunal noted that similar reasons had been provided for a deferment of studies in 2014, and the applicant had subsequently recommenced studies, suggesting he had recovered from the alleged trauma and financial uncertainty. Furthermore, investigations into the applicant's claimed business activities did not corroborate his assertions of being a business owner unable to find employment.

Consequently, the Tribunal affirmed the decision to cancel the applicant's visa. The Tribunal concluded that the applicant had not provided a satisfactory explanation for his extended failure to meet the core requirement of his student visa and, considering all circumstances, determined that the visa should be cancelled.