Hamza (Migration)

The Administrative Appeals Tribunal considered the case of an applicant holding a Student (Temporary) (Class TU) Subclass 573 Higher Education Sector visa. The dispute arose from the cancellation of this visa by the Department of Immigration and Border Protection. The applicant sought review of this decision, arguing against the cancellation.

The primary legal issue before the Tribunal was 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 of study. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, taking into account the circumstances presented by the applicant.

The Tribunal found that the applicant had indeed breached condition 8202(2) of the Regulations, as he was not enrolled in a registered course of study for a significant period, from 8 August 2015 until his visa was cancelled in October 2016. This was supported by the applicant's own admission and information from the Provider Registration and International Student Management System (PRISM). While the Tribunal acknowledged the applicant's original purpose of study in Australia and that he had not breached other visa conditions, it determined that the substantial gap in enrolment was a serious matter. The Tribunal considered the applicant's explanations for the study gap, including family disapproval of his marriage and withdrawal of financial support, as well as his wife's mental health treatment, but concluded these did not outweigh the prolonged breach of the enrolment condition.

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