Kumar (Migration)

The Administrative Appeals Tribunal considered the case of Mr. Kumar, who held a Student (Temporary) (Class TU) visa, Subclass 573 Higher Education Sector. The dispute concerned the cancellation of his visa, which was based on his alleged failure to comply with visa conditions. Mr. Kumar had been enrolled in a Bachelor of Engineering Technology (Civil) course but subsequently changed his enrolment to a hospitality course for migration and visa considerations. His enrolment in the bachelor degree was cancelled due to non-commencement of studies, and he subsequently worked in his uncle's restaurant. He had also applied for a Temporary Work (Skilled) visa and later a partner visa.

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 registered course and to maintain satisfactory course progress and attendance. 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 Tribunal also considered whether there were compelling circumstances that warranted not cancelling the visa.

The Tribunal found that Mr. Kumar had not complied with condition 8202(2) as he had not been enrolled in a registered course of study for approximately nine months prior to the delegate's decision to cancel his visa. This established a ground for cancellation under section 116(1)(b) of the Act. In considering the exercise of discretion, the Tribunal had regard to Mr. Kumar's submissions, including his purpose for coming to Australia, his work at his uncle's restaurant, his reliance on his uncle and migration agent for managing his affairs, his subsequent marriage to an Australian citizen and application for a partner visa, and the potential hardship to him and his wife if the visa were cancelled. Despite these submissions, the Tribunal concluded that the circumstances as a whole did not warrant refraining from cancelling the visa.

Ultimately, the Tribunal affirmed the decision to cancel Mr. Kumar's Subclass 573 Higher Education Sector visa.