KHALED (Migration)

This matter concerned an application to affirm the decision to cancel the Student (Temporary) (Class TU) visa, Subclass 573 (Higher Education Sector), held by the applicant. The applicant had arrived in Australia in May 2015 for the purpose of studying in the Higher Education Sector. The visa was cancelled on the basis that the applicant had breached condition 8202 of the Migration Regulations 1994, specifically by not being enrolled in a registered course of study at the time of cancellation.

The primary legal issue before the Tribunal was whether the applicant had breached visa condition 8202, which requires a student visa holder to be enrolled in a registered course and to maintain satisfactory course progress and attendance. If a breach was established, the Tribunal was then required to consider whether to exercise its discretion to cancel the visa, taking into account all relevant circumstances. The Tribunal also considered potential consequences of cancellation under Australian law and any obligations under international agreements.

The Tribunal found that the applicant had indeed breached condition 8202(2) as he admitted to not being enrolled in a registered course of study since November 2016. While the applicant was married to an Australian permanent resident and had a child born in Australia, the Tribunal noted that neither the applicant nor his wife presented evidence suggesting that the child's welfare or best interests would be compromised by the visa cancellation. The applicant had stated his intention to return to his home country of Lebanon with his wife and child if his visa was cancelled, and his wife corroborated this evidence. The Tribunal concluded that the grounds for cancellation were made out and affirmed the decision to cancel the applicant's visa.