ILKER (Migration)

The Administrative Appeals Tribunal considered a decision to cancel the Student (Temporary) (Class TU) visa, subclass 573, held by the applicant. The dispute arose from the applicant's alleged breach of visa condition 8516, which requires a visa holder to continue to satisfy the criteria for the grant of their visa. The applicant had been granted the visa on the basis of satisfying criteria related to confirmation or offer of enrolment in a registered course of study.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8516 of the Migration Regulations 1994. This involved determining if the applicant had continued to be a person who would satisfy the criteria for the grant of his Student visa, specifically concerning enrolment in a registered course of study. A secondary issue was whether, having found a breach, the Tribunal should exercise its discretion to cancel the visa.

The Tribunal reasoned that the applicant had not complied with condition 8516 because, at the time of the delegate's decision and for approximately 18 months prior, he was not enrolled in a registered course of study. This failure meant he no longer satisfied the criteria for his visa. In considering the exercise of discretion to cancel the visa, the Tribunal had regard to the applicant's circumstances, including his arrival in Australia in 2009, his lack of employment, his reliance on family support, and a refused application for a Training and Research visa. Despite the applicant's explanations regarding medical issues and advice received from a migration agent, the Tribunal was not satisfied that the applicant's present intention to reside in Australia was for the purposes of study.

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