Hari (Migration)

The applicant, a young Indian man, sought review of the cancellation of his Subclass 573 Student (Temporary) visa. The applicant had arrived in Australia in January 2014 with the stated purpose of study. However, Provider Registration and International Study Management system (PRISMS) records indicated he was not enrolled in a registered course for a period of 17 months, from February 2018 until the cancellation of his visa in July 2019. The applicant explained his absence from study was due to returning to India to address health concerns, including symptoms he feared might be bowel cancer. He did not respond to the Notice of Intention to Consider Cancellation (NOICC) because he was not checking his emails. The Administrative Appeals Tribunal (AAT) considered the decision under review.

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 of study. If a breach was established, the Tribunal then had to consider whether to exercise its discretion to affirm the delegate's decision to cancel the applicant's visa under s.116(1) of the Migration Act 1958. The Tribunal also considered the applicant's stated purpose for being in Australia, his compliance with visa conditions, and any potential hardship.

The Tribunal found that the applicant had indeed breached condition 8202(2) of his visa by failing to be enrolled in a registered course of study for a continuous period of 17 months. The Tribunal noted that the applicant did not dispute the factual basis for the cancellation and acknowledged he was notified but failed to respond due to not checking his emails. Consequently, the Tribunal gave little weight to the applicant's assertion that his purpose in Australia was to study, given his prolonged period of non-enrolment. The Tribunal considered the 17-month period of non-compliance to be significant. While the applicant mentioned family in India, he did not raise specific matters of hardship.

The Tribunal concluded that the applicant's non-compliance with his visa conditions was significant and that there were no compelling reasons to exercise discretion against cancellation. Therefore, the Tribunal affirmed the decision to cancel the applicant's Subclass 573 Student (Temporary) visa.