Kumar (Migration)

The Administrative Appeals Tribunal considered the case of Mr. Kumar, a holder of a Subclass 573 Higher Education Sector visa. The dispute arose from the cancellation of his visa by the Department of Immigration and Border Protection. Mr. Kumar sought review of this decision before the Tribunal.

The primary legal issue before the Tribunal was whether Mr. Kumar had breached condition 8202 of his visa, which requires a student visa holder to be enrolled in a registered course of study. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, having regard to various factors including extenuating circumstances and government policy.

The Tribunal found that Mr. Kumar had indeed not been enrolled in a registered course since 9 November 2015, thus technically breaching condition 8202(2). However, the Tribunal then exercised its discretion not to cancel the visa. It reasoned that exceptional circumstances, including the death of his grandmother in Pakistan and his own health issues, had prevented him from maintaining his enrolment. The Tribunal was satisfied that Mr. Kumar had a genuine intention to continue his studies, had a satisfactory education history, and that cancelling his visa would cause significant hardship.

Consequently, the Tribunal set aside the decision to cancel Mr. Kumar's visa and substituted a decision not to cancel it, allowing him the opportunity to complete his studies.