Kumar (Migration)

The Administrative Appeals Tribunal considered the case of Mr. Kumar, an Indian citizen holding a Student visa, whose visa was cancelled by the Department of Immigration. The dispute centred on 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. The Department had notified Mr. Kumar of its intention to cancel his visa, alleging he had not been enrolled in a registered course since 11 June 2016, and subsequently issued a cancellation notice. Mr. Kumar, through his migration agent, responded that he was in the process of enrolling and was enrolled at the time of his response, but provided no explanation for the prior period of non-enrolment.

The primary legal issue before the Tribunal was whether Mr. Kumar had complied with condition 8202 of his Student visa. This condition mandates that the holder must be enrolled in a registered course. If a breach of this condition 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 was tasked with determining if the grounds for cancellation existed and, if so, whether the circumstances warranted affirming the cancellation decision.

The Tribunal reasoned that the evidence, primarily from Provider Registration and International Student Management System (PRISMS) data, indicated that Mr. Kumar had not been enrolled in a registered course since 11 June 2016. This constituted a breach of condition 8202(2)(a). The Tribunal found this breach to be significant due to its duration, exceeding nine months at the time of the delegate's decision, and its fundamental nature to the purpose of a Student visa. While acknowledging potential financial difficulties and the consequences of cancellation such as becoming an unlawful non-citizen, the Tribunal found no extenuating or compassionate circumstances, nor any negative impact on family members in Australia or engagement with Australia's international obligations.

Consequently, the Tribunal was satisfied that the ground for cancellation existed and that the circumstances did not warrant exercising its discretion not to cancel the visa. The Tribunal affirmed the decision to cancel Mr. Kumar's Class TU visa.