Gangam (Migration)

This matter concerned an appeal to the Tribunal regarding the cancellation of the applicant's Student (Temporary) (Class TU) Subclass 573 Higher Education Sector visa. The Department had cancelled the visa on the grounds that the applicant was not enrolled in a registered course between 31 May 2017 and 17 January 2018, which constituted a breach of condition 8202 of the Migration Regulations 1994. The applicant acknowledged not being enrolled during this period and agreed that grounds existed for cancellation.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of the Migration Regulations 1994, specifically subclause (2) requiring enrolment 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 under section 116(1) of the Migration Act 1958. The Tribunal also considered the applicant's submissions regarding any compelling need to remain in Australia and the extent of hardship that might be caused by cancellation.

The Tribunal found that the applicant had indeed breached condition 8202(2) by failing to be enrolled in a registered course during the specified period. In considering the discretion to cancel, the Tribunal acknowledged the applicant's original intention to study in Australia and his stated desire to avoid social embarrassment in his hometown if he returned without a degree. However, the Tribunal found these reasons did not constitute a compelling need to remain, particularly as the applicant proposed studying at a lower level than his visa was granted for and had not provided satisfactory evidence for not pursuing further studies in India. While acknowledging the applicant's compliance with other visa conditions, the Tribunal weighed the fundamental breach of maintaining enrolment against him.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's visa, concluding that the circumstances as a whole did not warrant the exercise of discretion to set aside the cancellation.