Kumar (Migration)

This matter concerned an appeal by the applicant, Mr. Kumar, against the cancellation of his Student (Temporary) (Class TU) visa, Subclass 500. The decision under review was made by the Administrative Appeals Tribunal (AAT), presided over by Member Wendy Banfield. The core of the dispute revolved around whether Mr. Kumar had breached condition 8202 of Schedule 8 to the Migration Regulations 1994 by failing to maintain enrolment in a registered course at the appropriate AQF level.

The Tribunal was required to determine if Mr. Kumar had complied with condition 8202 of his student visa. Specifically, the Tribunal had to assess whether he had maintained enrolment in a registered course that, upon completion, would provide a qualification at the same or a higher Australian Qualifications Framework (AQF) level than the course for which his visa was originally granted. The Tribunal also had to consider whether, having found a breach, there were compelling reasons to exercise discretion and not affirm the cancellation of his visa.

The Tribunal found that Mr. Kumar had breached condition 8202(2)(b) of his visa. Evidence indicated that he had discontinued his Master's degree studies (AQF level 9), which was the purpose of his visa grant, and instead enrolled in vocational courses that did not meet the visa conditions. Mr. Kumar himself acknowledged this breach in his response to the Notice of Intention to Cancel and at the Tribunal hearing. In considering the exercise of discretion, the Tribunal noted that while Mr. Kumar expressed a desire to gain skills in the automotive industry, he had not demonstrated a compelling need to remain in Australia, particularly given his original intention to study a Master's degree.

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