El Samad (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Student (Temporary) (Class TU) visa, Subclass 573 (Higher Education Sector), was cancelled. The dispute arose because the applicant was not enrolled in a registered course of study for a significant period, contrary to the conditions of their visa.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of Schedule 8 to the Migration Regulations 1994, which requires a student visa holder to be enrolled in a registered course and to maintain satisfactory course progress and attendance. If a breach was found, the Tribunal then had to determine whether to exercise its discretion to cancel the visa, considering the applicant's circumstances and relevant government policy.

The Tribunal reasoned that the applicant had indeed breached condition 8202(2)(a) by failing to maintain enrolment in a registered course for over seven months. While the applicant provided reasons for this non-compliance, including running a business and experiencing financial and health pressures, the Tribunal found these explanations did not negate the breach. The Tribunal noted that the applicant had not pursued the primary purpose of their student visa during this period and that their subsequent re-enrolment was in a lower-level course only after receiving a notice of intention to cancel. Applying the principles of visa cancellation, the Tribunal concluded that the breach was significant and weighed in favour of cancellation.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's visa, finding that the circumstances as a whole warranted this outcome.