Jadav (Migration)

The Administrative Appeals Tribunal considered the cancellation of the applicant's Student (Temporary) (Class TU) visa, Subclass 573 Higher Education Sector. The applicant's visa was cancelled on the grounds that he had ceased enrolment in a registered course, specifically due to non-payment of fees, and had not obtained a release letter from his previous university. The applicant contended that he had changed courses and was seeking to establish a small hospital in India, having applied for a government scholarship to support this venture.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of Schedule 8 to the Migration Regulations 1994. This condition requires a student visa holder to be enrolled in a registered course and to achieve satisfactory course progress and attendance, unless specific exceptions apply. The Tribunal was required to determine if the applicant's circumstances constituted a breach of this condition, and if so, whether the discretion to cancel the visa should be exercised.

The Tribunal found that, based on the evidence, the applicant was not enrolled in a registered course at the time of the visa cancellation, thus failing to comply with condition 8202(2). However, the Tribunal then considered the exercise of its discretion regarding cancellation. It took into account the applicant's compelling reasons for coming to Australia to study, his future plans to establish a hospital in India, and his efforts to re-enrol in educational institutions. The Tribunal also noted the applicant's compliance with other visa conditions in the past and his work history in Australia.

Ultimately, the Tribunal concluded that, considering all the circumstances, the visa should not be cancelled. The decision under review was set aside, and a substituted decision was made not to cancel the applicant's Subclass 573 visa.