KAPIL KUMAR (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Student (Temporary) (Class TU) visa, specifically a Subclass 573 Higher Education Sector visa. The applicant, Kapil Kumar, had his visa cancelled on the grounds that he failed to comply with condition 8202 of the Migration Regulations 1994. The Tribunal was required to determine whether the applicant had breached this condition and, if so, whether to exercise its discretion to cancel the visa.

The central legal issue was whether the applicant had complied with condition 8202, which mandates that a student visa holder must be enrolled in a registered course, achieve satisfactory course progress, and maintain satisfactory course attendance. The applicant's visa was cancelled because he was not enrolled in a registered course at the time of the delegate's decision, a fact he conceded. The Tribunal also considered the applicant's arguments regarding financial hardship due to his father's illness and his desire to continue his studies, as well as government policy guidelines.

The Tribunal found that the applicant had not complied with condition 8202(2) as he had not been enrolled in a registered course since 27 July 2015. Despite acknowledging the applicant's attempts to secure a new offer of study and his stated intention to return to India with a degree, the Tribunal gave significant weight to the fact that the applicant had not completed any courses, apart from an initial ELICOS course, in over three years. The Tribunal was not satisfied that the applicant was staying in Australia for study purposes or that he had a compelling need to remain. Consequently, the Tribunal affirmed the decision to cancel the applicant's visa.