GAURAV (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Student (Temporary) (Class TU) visa, specifically a 573 Higher Education Sector visa, was cancelled. The dispute centred on whether the applicant had breached a condition of their visa, leading to the cancellation decision under section 116(1) of the Migration Act 1958.

The primary legal issue before the Tribunal was whether the applicant had complied with condition 8202 of Schedule 8 to the Migration Regulations 1994. This condition requires a student visa holder to be enrolled in a registered course of study. The Tribunal also had to consider whether, having found a breach, it should exercise its discretion to cancel the visa, taking into account various factors.

The Tribunal found that the applicant had breached condition 8202, as evidenced by information from the Provider Registration and International Student Management System (PRISMS) indicating a significant period of non-enrolment. While the applicant attempted to explain this gap, their explanation was found to be limited, contradictory, and unsupported by evidence. In considering its discretion to cancel the visa, the Tribunal weighed the applicant's stated intention to study and the potential hardship caused by cancellation against the critical importance of ongoing enrolment for this visa class and the lengthy duration of the breach. The Tribunal gave greater weight to the circumstances of the cancellation and the prolonged breach, concluding that the visa should be cancelled.

Consequently, the Tribunal affirmed the decision to cancel the applicant's Student Higher Education Sector (subclass 573) visa.