IQBAL (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Student (Temporary) (Class TU) visa was cancelled. The dispute centred on whether the applicant had breached condition 8202 of the Migration Regulations 1994, which requires a student visa holder to maintain enrolment in a registered course and achieve satisfactory academic progress and attendance. The Tribunal, constituted by Member Donna Petrovich, was tasked with determining if the grounds for cancellation existed and, if so, whether the discretion to cancel the visa should be exercised.

The primary legal issue was whether the applicant had contravened condition 8202 of Schedule 8 to the Migration Regulations 1994. This condition mandates that a student visa holder must be enrolled in a registered course and must not have been certified by their education provider as failing to achieve satisfactory course progress or attendance. If such a breach occurred, the Tribunal had to consider whether to affirm the cancellation of the visa under section 116(1) of the Migration Act 1958.

The Tribunal found that the applicant had indeed breached condition 8202 because he was not enrolled in any course of study at the time of the cancellation. The evidence presented showed a history of multiple course changes, cancellations, and non-payment of fees over a period of approximately ten years, indicating a lack of commitment to his studies and a disregard for his visa obligations. The Tribunal concluded that these circumstances demonstrated a failure to fulfil his responsibilities as a student and that the ground for cancellation under s 116(1)(b) of the Act was established.

Having found that the applicant had not complied with a condition of his visa, the Tribunal then considered whether to exercise its discretion to cancel the visa. It had regard to the applicant's stated purpose for being in Australia, which was to study and obtain a degree, but found that his consistent lack of enrolment and academic progress, often due to non-payment of fees, weighed heavily against him. The Tribunal also considered the applicant's explanations for his enrolment issues, including being overseas and alleged communication problems, but gave them no weight in favour of not cancelling the visa. Ultimately, the Tribunal affirmed the decision to cancel the applicant's visa.