Kandel (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Student (Temporary) (Class TU) visa, subclass 500, was cancelled. The dispute centred on whether the applicant had breached a condition of their visa, specifically condition 8202 of Schedule 8 to the Migration Regulations 1994, which requires a student visa holder to be enrolled in a registered course. The applicant had been notified of the intention to cancel their visa on the grounds of non-enrolment and had admitted to this breach.

The primary legal issue before the Tribunal was to determine if the applicant had failed to comply with visa condition 8202(2)(a) by not being enrolled in a registered course. If this ground for cancellation was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, taking into account various factors including the purpose of the applicant's travel and stay, the extent of their compliance with visa conditions, and any hardship that might be caused.

The Tribunal found that the applicant had indeed failed to maintain enrolment in a registered course, a fact that existed at the time the delegate made the cancellation decision. This constituted a breach of condition 8202(2)(a), thus establishing the ground for cancellation. In considering the discretion to cancel, the Tribunal noted that the applicant's stated purpose for being in Australia was to study, but evidence indicated they had not been enrolled in a registered course since shortly after their visa was granted. The applicant's reasons for remaining in Australia after enrolment cancellation, including a desire to avoid parental disappointment and financial difficulties leading to the initial cancellation, were considered. However, the Tribunal was not satisfied that these circumstances presented a compelling need for the applicant to remain in Australia, and concluded that this factor weighed in favour of cancellation. Furthermore, the limited extent of the applicant's compliance with the enrolment condition, coupled with a lack of verifiable evidence to support claims of academic progress, also weighed in favour of cancellation.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's visa.