Dikkumbura (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of an applicant whose Student (Temporary) (Class TU) visa, subclass 500, was cancelled. The dispute centred on whether the applicant had breached condition 8202 of the Migration Regulations 1994, which requires a student visa holder to be enrolled in a registered course. The applicant argued that personal difficulties, including his mother's illness and challenges in settling in Australia, explained his failure to maintain enrolment, and he sought to have the cancellation decision set aside.

The primary legal issue before the Tribunal was whether the applicant had complied with condition 8202 of his visa. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa under section 116(1) of the Migration Act 1958. This involved assessing the applicant's submissions regarding the reasons for his non-enrolment and the potential hardship he might face if required to return to his home country.

The Tribunal found that the applicant had indeed breached condition 8202 by not being enrolled in a registered course for a significant period. While acknowledging the applicant's stated difficulties, including his mother's health issues and his own struggles to adapt, the Tribunal found these explanations insufficient to warrant the exercise of discretion in his favour. The Tribunal noted that the applicant's mother had been aware of his non-enrolment for a considerable time, diminishing the argument that her disappointment constituted a compelling reason for him to remain in Australia. Furthermore, the Tribunal considered the length of the non-enrolment to be significant, giving minimal weight to the apparent absence of other visa condition breaches.

Ultimately, the Tribunal concluded that the circumstances did not justify setting aside the cancellation decision. The Tribunal affirmed the decision to cancel the applicant's visa.