Kaur (Migration)

This matter concerned the review of a decision by a delegate of the Minister for Immigration and Border Protection to cancel Ms Baldeep Kaur's Subclass 573 Higher Education Sector visa under s.116(1)(b) of the *Migration Act 1958* (Cth). Ms Kaur, an Indian national, had arrived in Australia in January 2014 and her student visa was cancelled on 6 February 2017. She was subsequently granted bridging visas. The cancellation was based on the finding that she had not been enrolled in a registered course since 26 April 2016, thereby breaching condition 8202(2)(a) of her visa. A previous review by the Tribunal had affirmed the cancellation decision, but this was remitted back to the Tribunal by the Federal Circuit Court due to a failure to disclose relevant information to Ms Kaur.

The primary legal issue before the Tribunal was whether Ms Kaur had breached condition 8202(2)(a) of her student visa, and if so, whether the discretion to cancel her visa should be exercised. The Tribunal was required to consider the applicant's circumstances, including the purpose of her travel, her compliance with visa conditions, and any compelling reasons for her to remain in Australia. The Tribunal also had regard to the Department's Procedural Instruction on general visa cancellation powers.

The Tribunal found that Ms Kaur had indeed breached condition 8202(2)(a) by not being enrolled in a registered course between 26 April 2016 and 6 February 2017, a fact she did not contest. While the ground for cancellation existed, it was not mandatory. The Tribunal then considered its discretion. It found that Ms Kaur's desire to complete her studies in Commercial Cookery and Hospitality did not constitute a compelling need to remain in Australia, weighing in favour of cancellation. The Tribunal noted Ms Kaur's history of one completed course and thirteen cancellations of enrolment, along with non-commencement and non-payment of fees, and a delay in applying for a bridging visa after her student visa was cancelled. Despite Ms Kaur's stated remorse and explanations related to physical and mental health, and her fear of family disownment if she returned without qualifications, the Tribunal concluded that these factors did not outweigh the grounds for cancellation.

The Tribunal affirmed the decision to cancel Ms Kaur's visa.