KHAWAR (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Student (Temporary) (Class TU) visa, Subclass 573 (Higher Education Sector), was cancelled. The dispute centred on whether the applicant had breached a condition of their visa, leading to the cancellation decision by the Department of Home Affairs.

The Tribunal was required to determine if the applicant had complied with Condition 8202 of the Migration Regulations 1994. Specifically, the court needed to ascertain whether the applicant was enrolled in a registered course as mandated by the condition, and if not, whether the discretion to cancel the visa should be exercised. The applicant's study record, including poor attendance and a significant period of non-enrolment, along with stated mental health issues, were relevant considerations in the exercise of this discretion.

The Tribunal found that the applicant had indeed breached Condition 8202(2)(a) by not being enrolled in a registered course between May 2018 and March 2019. While the applicant later re-enrolled after receiving a Notice of Intention to Cancel, this did not negate the prior breach. In considering the discretion to cancel the visa, the Tribunal acknowledged the applicant's personal circumstances, including family pressures and regret over past academic performance. However, it concluded that these factors did not constitute a compelling need to remain in Australia, and the applicant's failure to adhere to visa conditions was a significant factor.

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