DHUNDHARA (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Student (Temporary) (Class TU) visa, subclass 500, was cancelled. The dispute arose from the applicant's failure to maintain enrolment in a registered course of study, which constituted a breach of condition 8202 of the Migration Regulations 1994. The applicant sought to have the cancellation decision set aside.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of the Migration Regulations 1994, specifically by failing to be enrolled in a registered course. If a breach was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, having regard to the applicant's submissions and relevant government policy guidelines. The Tribunal was required to assess the applicant's claims regarding homesickness, isolation, and alleged restrictions on admissions in Indian colleges, as well as the applicant's overall compliance with visa conditions and the purpose of his stay in Australia.

The Tribunal found that the applicant had breached condition 8202(2) of the Regulations because his enrolment with Western Sydney University was cancelled on 15 May 2015, and he remained unenrolled in any registered course until his visa was cancelled on 27 September 2016, a period of 16 months. The applicant's claims about difficulties in enrolling in Indian institutions were not substantiated with evidence, and the Tribunal was not satisfied that he would be unable to gain admission to a university or college in India. While acknowledging the applicant might suffer some hardship, the Tribunal determined that this, along with his apologies and promises of future compliance, did not outweigh the significant breach of visa conditions and the circumstances leading to it. The Tribunal also gave limited weight to the applicant's failure to respond to the notice of intention to cancel his visa.

Consequently, the Tribunal affirmed the decision to cancel the applicant's Class TU visa.