Lutchmiah (Migration)

This matter concerned an appeal by the applicant, Mr Lutchmiah, against the cancellation of his Student (Temporary) (Class TU) visa, subclass 500. The Department of Home Affairs had issued a Notice of Intention to Consider Cancellation (NOICC) due to the applicant ceasing to be enrolled in a registered course from 21 February 2020, thereby breaching visa condition 8202. The applicant did not respond to the NOICC and failed to attend the tribunal hearing.

The Migration Review Tribunal was required to determine whether the ground for cancellation under s 116(1)(b) of the Migration Act 1958 (Cth) existed and, if so, whether to exercise its discretion to cancel the visa. The Tribunal also considered the applicant's purpose for being in Australia and whether there was a compelling need for him to remain.

The Tribunal found that the ground for cancellation under s 116(1)(b) was established because the applicant had failed to comply with visa condition 8202(2)(a) by not maintaining enrolment in a registered course. While this ground did not mandate cancellation, the Tribunal proceeded to consider its discretion. It noted the applicant's extensive period of non-enrolment, spanning approximately two years and eight months, which meant he was not fulfilling the purpose for which his visa was granted. Despite acknowledging that visa cancellation is a significant matter, the Tribunal, on balance and considering all circumstances, concluded that the visa should be cancelled.

The Tribunal affirmed the decision to cancel the applicant's Class TU visa.