Iftikhar (Migration)

This matter concerned an appeal by an applicant against the decision of a delegate to cancel his Student (Temporary) (Class TU) visa, subclass 573 (Higher Education Sector). The applicant had been granted the visa on 27 March 2015. The delegate issued a Notice of Intention to Consider Cancellation on 19 January 2018, and subsequently cancelled the visa on 8 March 2018, on the basis that the applicant had not been enrolled in a registered course since 5 June 2017.

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. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, weighing factors for and against cancellation. The applicant conceded that he had breached condition 8202.

The Tribunal found that the applicant had not been enrolled in a registered course since 5 June 2017, thus failing to comply with condition 8202(2)(a). In considering the discretion to cancel, the Tribunal noted the significant period of non-enrolment, which extended from June 2017 until at least the time of the hearing in late 2019. While acknowledging the applicant's stated reasons for non-enrolment, including mental health issues, death in the family, and physical injury, the Tribunal found these did not demonstrate a compelling need to remain in Australia, particularly given the prolonged period without study. The Tribunal concluded that the grounds for cancelling the visa outweighed the grounds for not cancelling it.

The Tribunal affirmed the decision to cancel the applicant’s visa.