Kiprotich (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Student (Temporary) (Class TU) visa, Subclass 573, was cancelled. 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. The applicant's visa was cancelled on the basis that he was not enrolled in a registered course between August 2017 and March 2018.

The primary legal issue before the Tribunal was to determine if the applicant had breached condition 8202 of his visa. If a breach was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa under section 116(1) of the Migration Act 1958. The applicant contended that changes in his sister's financial circumstances, who had been sponsoring his studies, led to the cancellation of his enrolment by his education provider. He also argued that his late response to the Notice of Intention to Consider Cancellation was due to the inaction of his previous migration agent.

The Tribunal found that the applicant had indeed breached condition 8202 as he was not enrolled in a registered course for a significant period exceeding seven months. While acknowledging the applicant's explanation regarding his sister's financial difficulties and the education provider's response, the Tribunal determined that this did not satisfy the requirement of actively pursuing the purpose of his visa. The Tribunal also considered the discretion to cancel the visa, noting that while the applicant might face some financial difficulty and become an unlawful non-citizen, these factors did not outweigh the seriousness of the breach. The Tribunal concluded that the circumstances did not warrant exercising the discretion not to cancel the visa.

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