Johal (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Subclass 573 (Higher Education Sector) student visa was cancelled. The dispute arose from the applicant's failure to maintain enrolment in a registered course, a breach of visa condition 8202(2)(a). The applicant had ceased to be enrolled in any registered course of study from 14 June 2016, with his previous courses being cancelled for reasons including non-commencement and disciplinary issues.

The primary legal issue before the Tribunal was whether the ground for cancellation under s 116(1)(b) of the Migration Act 1958 (Cth) was established, and if so, whether the Tribunal should exercise its discretion to affirm the cancellation of the applicant's visa. The Tribunal was required to determine if the applicant had breached condition 8202(2)(a) by not being enrolled in a registered course, and then consider the applicant's submissions regarding his academic difficulties, a change of course, and alleged lower back pain, in deciding whether to exercise its discretion to cancel the visa.

The Tribunal found that the applicant had indeed breached condition 8202(2)(a) as he had not been enrolled in a registered course since 14 June 2016. In considering the exercise of discretion, the Tribunal noted the applicant's explanation for his enrolment issues and his claims of back pain. However, the medical evidence provided from an Indian doctor was incomplete, undated, and unsigned. Furthermore, the Tribunal found no evidence obtained in Australia to demonstrate that the applicant's back pain had impacted his ability to study or obtain enrolment after 30 June 2016, the period covered by the medical certificates.

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