Kumar (Migration)

The Administrative Appeals Tribunal considered the case of Mr. Kumar, the holder of a Student (Temporary) (Class TU) visa, subclass 500. The dispute concerned the cancellation of his visa by the Department of Home Affairs. The Tribunal was tasked with determining whether the cancellation decision should be affirmed.

The primary legal issue before the Tribunal was whether Mr. Kumar had breached condition 8202 of the Migration Regulations 1994, which requires a student visa holder to be enrolled in a full-time registered course. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, taking into account the circumstances of the case.

The Tribunal found that Mr. Kumar had indeed breached condition 8202(2)(a) as he was not enrolled in a full-time registered course. He admitted to his enrolment in a Bachelor of Business (Marketing) course being cancelled, and subsequent proposed enrolments in other courses also being cancelled. He also acknowledged breaching the requirement to maintain enrolment in a course at the same or higher AQF level. In considering the discretion to cancel, the Tribunal found that Mr. Kumar did not have a compelling need to remain in Australia for study, noting his stated interest in aviation studies lacked supporting evidence of enrolment attempts. The Tribunal also found the extent of his non-compliance to be poor and did not accept that a back injury prevented him from studying while allowing him to work.

Consequently, the Tribunal affirmed the Department's decision to cancel Mr. Kumar's visa, concluding that the factors favouring cancellation outweighed those against it.