HAIDER (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Student (Temporary) (Class TU) visa, Subclass 572, was cancelled. The cancellation was based on the applicant's alleged failure to comply with condition 8202 of Schedule 8 to the Migration Regulations 1994, specifically by not being enrolled in a registered course. The applicant had been granted the visa on 9 September 2015, with a stay period until 21 July 2017.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of the visa, which requires the holder to be enrolled in a registered course, achieve satisfactory course progress, and maintain satisfactory course attendance. 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. The applicant had received a Notice of Intention to Consider Cancellation (NOICC) indicating a lack of enrolment in a registered course since April 2016, and did not dispute the grounds for cancellation during the proceedings.

The Tribunal found that, on the evidence, the applicant was not enrolled in a registered course, thereby failing to comply with condition 8202(2)(a). In considering the discretion to cancel the visa, the Tribunal noted that while the applicant cited a medical condition and an intention to work and pursue a Subclass 457 visa, he had been unenrolled for nearly ten months. Furthermore, the applicant had not completed any course of study in Australia for almost four years prior to the hearing, and his stated intention to study was not supported by any inquiries made about further educational opportunities. The Tribunal concluded that the applicant's focus had shifted from study to employment and a potential Subclass 457 visa, and that his explanation for not studying was not persuasive.

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