MAKAM (Migration)

This matter concerned an appeal by the applicant against the cancellation of his Student (Temporary) (Class TU) visa, Subclass 573 (Higher Education Sector). The dispute centred on whether the applicant had breached condition 8202 of Schedule 8 to the Migration Regulations 1994, which requires a student visa holder to maintain enrolment in a registered course. The Administrative Appeals Tribunal (AAT) was required to determine if the applicant had indeed breached this condition and, if so, whether the discretion to cancel his visa should be exercised.

The Tribunal was tasked with assessing whether the applicant had complied with condition 8202(2)(a) of his visa, which mandates enrolment in a registered course. The evidence indicated that the applicant's enrolment in a Master of Computing Technology degree was cancelled on 17 March 2017 due to cessation of studies, and he remained unenrolled in any registered course until 27 January 2019. Furthermore, subsequent enrolments in a Diploma and Advanced Diploma of Leadership and Management were cancelled on 30 August 2019 for non-payment of fees. The Tribunal also had to consider the exercise of discretion regarding visa cancellation, taking into account the applicant's stated purpose for his stay and his compliance history.

In its reasoning, the Tribunal found that the applicant had breached condition 8202(2)(a) by failing to maintain enrolment in a registered course for a substantial period between March 2017 and January 2019. The applicant's explanations for this period of non-enrolment, including financial difficulties and issues with shelter, were not accepted as sufficient to excuse the breach. In considering the discretion to cancel, the Tribunal found that while the applicant's initial purpose was to study, his subsequent actions, including prolonged periods of non-enrolment and focus on employment, indicated he was not genuinely seeking to remain in Australia for study. The Tribunal concluded that the grounds for cancellation outweighed any reasons not to cancel.

Consequently, the Tribunal affirmed the decision to cancel the applicant's visa.