khalil (Migration)

This matter concerned an appeal by an applicant against the cancellation of their Student (Temporary) (Class TU) visa, Subclass 573 Higher Education Sector. The applicant had been enrolled in a Diploma of Mechanical Engineering. 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 maintain satisfactory course progress and attendance. The Tribunal was required to determine if the applicant had indeed breached this condition and, if so, whether to exercise its discretion to cancel the visa.

The Tribunal found that the applicant had breached condition 8202(2) of the Migration Regulations 1994. Following a car accident in 2015, the applicant had not completed their course and remained unenrolled in any registered course for over 12 months, from 30 December 2015 to 21 February 2017. This failure to maintain enrolment constituted a fundamental breach of the conditions attached to a student visa. In considering the discretion to cancel the visa, the Tribunal had regard to the applicant's original purpose of study, their claimed compelling need to remain in Australia due to recent enrolment in vocational courses with the aim of establishing a business in their home country, the extent of their compliance with visa conditions, and the potential hardship that may be caused by cancellation.

The Tribunal was not satisfied that the applicant had a compelling need to remain in Australia, finding that the recent re-enrolment in vocational courses did not demonstrate a powerful or convincing reason to stay. The failure to maintain enrolment was considered a significant factor weighing against the applicant. While some weight was given to the applicant's family's belief in the importance of completing their studies and the potential hardship of having to satisfy Public Interest Criterion 4013, the Tribunal concluded that these factors did not outweigh the fundamental breach of visa conditions. Consequently, the Tribunal affirmed the decision to cancel the applicant's visa.