DHALIWAL (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Student (Temporary) (Class TU) visa, subclass 573, was cancelled. The dispute centred on whether the applicant had breached a condition of their visa, specifically condition 8202 of Schedule 8 to the Migration Regulations 1994, which requires a student visa holder to be enrolled in a registered course.

The Tribunal was required to determine if the applicant had complied with condition 8202, 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 to cancel the visa, taking into account the applicant's circumstances and relevant government policy. The applicant's stated reasons for non-enrolment, including financial hardship due to family illness and a lack of genuine commitment to study, were also central to the Tribunal's assessment.

The Tribunal found that the applicant had not been enrolled in a registered course since July 2016, thereby breaching condition 8202(2)(a). The applicant's explanation for non-enrolment, relating to his father's illness and subsequent financial difficulties, was considered but ultimately not persuasive enough to outweigh the breach. Furthermore, the Tribunal was not satisfied that the applicant had a genuine intention to study in Australia, noting the applicant's varied course choices and failure to progress beyond a diploma level when initially intending to pursue a higher education degree. The applicant's failure to respond to a Notice of Intention to Consider Cancellation was also noted.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's visa. The Tribunal concluded that the applicant's non-compliance with the primary visa condition, coupled with concerns about his genuine commitment to study, weighed heavily in favour of cancellation. While acknowledging the potential hardship to the applicant and his family, these factors were not considered sufficient to warrant the exercise of discretion against cancellation.