Kallala (Migration)

This matter concerned an appeal by an applicant against the cancellation of his Student (Temporary) (Class TU) visa, subclass 573 Higher Education Sector. The applicant had been enrolled in courses in Information Technology and later Commercial Cookery. The dispute centred on 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 and to maintain satisfactory course progress and attendance. The Administrative Appeals Tribunal (AAT) was required to determine if the applicant had indeed breached condition 8202 and, if so, whether the decision to cancel his visa should be affirmed.

The Tribunal found that the applicant had breached condition 8202(2) of his visa by not being enrolled in a registered course of study for a continuous period of approximately 11 months, from 16 November 2017 to 1 November 2018. This finding was based on information from the Provider Registration and International Student Management System (PRISMS) and was confirmed by the applicant's own oral evidence. The applicant had initially enrolled in Information Technology but withdrew due to academic difficulties, language barriers, and financial concerns. He then enrolled in a Commercial Cookery course, but his enrolment was subsequently cancelled due to unsatisfactory attendance, exacerbated by a family illness in India and his subsequent emotional distress. Despite these circumstances, the Tribunal considered the applicant's evidence regarding his English language difficulties, family financial issues, illness in the family, and emotional issues. However, the Tribunal concluded that these factors did not negate the fact of his prolonged non-enrolment.

Having established the breach of condition 8202(2), the Tribunal then considered its discretion to cancel the visa. While acknowledging the applicant's stated difficulties, the Tribunal found that the applicant had failed to take adequate steps to remedy his situation, such as seeking medical treatment for his stated depression or actively re-engaging in study once his financial situation improved. The Tribunal ultimately affirmed the delegate's decision to cancel the applicant's visa.