Harjinder Kaur (Migration)

The Administrative Appeals Tribunal considered the cancellation of Ms Harjinder Kaur's Student (Temporary) (Class TU) visa, Subclass 573 Higher Education Sector. The dispute arose because Ms Kaur was not enrolled in a registered course, which constituted a breach of condition 8202 of the Migration Regulations 1994. The Tribunal was required to determine whether Ms Kaur had indeed breached condition 8202 and, if so, whether the discretion to cancel her visa should be exercised.

The Tribunal found that Ms Kaur had breached condition 8202(2) as she had not been enrolled in a registered course for approximately six months prior to the Notice of Intention to Cancel. However, the Tribunal then considered its discretion to cancel the visa. In doing so, it had regard to the circumstances surrounding the breach, including Ms Kaur's stated reasons for changing her course of study. Ms Kaur explained that she initially intended to study nursing but was requested by her father-in-law, who was funding her studies, to change to a less expensive course. She subsequently enrolled in a Diploma of Business. The Tribunal accepted that cultural expectations and her role as a dutiful daughter-in-law, influenced by traditional Indian culture, were significant factors in her decision to change courses, and that these circumstances were outside her direct control.

Weighing the significance of the five-month breach against the compelling circumstances that led to it, the Tribunal concluded that the visa should not be cancelled. Accordingly, the Tribunal set aside the decision to cancel Ms Kaur's visa and substituted a decision not to cancel it.