KUMARAPERU ARACHCHIGE DON (Migration)

This matter concerned an appeal by the applicant against the cancellation of his Student (Temporary) (Class TU) visa, subclass 573. The applicant had been granted the visa on 11 April 2014. The core of the dispute revolved around whether the applicant 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. The applicant's visa was cancelled on the basis that he had not been enrolled in a registered course since 28 May 2015.

The legal issues before the Tribunal were twofold: first, whether the applicant had breached condition 8202 of his visa by failing to maintain enrolment in a registered course; and second, if a breach was established, whether the Tribunal should exercise its discretion to cancel the visa. The applicant contended that financial difficulties faced by his family in Sri Lanka, including drought conditions affecting his father's farm, were the reasons for his prolonged period of non-enrolment.

The Tribunal found that the applicant had indeed breached condition 8202(2) as he was not enrolled in a registered course from 28 May 2015 until at least 13 September 2016, when he obtained a new confirmation of enrolment. While the applicant provided reasons for this non-enrolment, including family financial problems and drought, the Tribunal found his evidence to be vague and inconsistent, particularly regarding the use of a bank loan. The Tribunal gave limited weight to the applicant's explanation for his prolonged period of non-enrolment and his subsequent re-enrolment, noting that it coincided with the department's notice of intention to cancel his visa. Furthermore, the Tribunal found the applicant's claims of hardship if the visa were cancelled to be unsubstantiated. Weighing the significant length of the visa breach against the limited factors favouring the applicant, the Tribunal concluded that the visa cancellation should be affirmed.