Maharjan (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Student (Temporary) (Class TU) Subclass 573 (Higher Education Sector) visa was cancelled. The cancellation was based on the applicant's failure to be enrolled in a registered course, which constituted a breach of visa condition 8202. The applicant sought to have this cancellation decision reviewed and set aside.

The primary legal issue before the Tribunal was 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. If a breach was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, taking into account the circumstances of the case.

The Tribunal found that the applicant had indeed breached condition 8202 by not being enrolled in a registered course for a significant period. While the applicant provided reasons for this non-enrolment, including family health issues and his mother's asylum application in the USA, the Tribunal noted inconsistencies between the applicant's written submissions and his oral evidence regarding his intentions and the impact of these events. Specifically, the Tribunal found conflicting evidence regarding his reasons for continuing his studies in Australia and his future career aspirations. Due to these inconsistencies, the Tribunal was not satisfied that the applicant was a credible or reliable witness, nor that he had a compelling need to remain in Australia.

Consequently, the Tribunal affirmed the decision to cancel the applicant's visa, concluding that the breach of condition 8202 was serious and that the applicant's lack of credibility weighed heavily against exercising discretion to set aside the cancellation.