Malik (Migration)

This matter concerned an appeal by an applicant against the cancellation of their Subclass 573 Student (Higher Education Sector) visa. The applicant's visa was cancelled by the Department on the grounds that they had breached condition 8202 of the Migration Regulations 1994 by failing to be enrolled in a registered course. The applicant did not dispute that they had not been enrolled in a registered course for a period exceeding 12 months. The Administrative Appeals Tribunal was required to determine whether the applicant had breached condition 8202 and, if so, whether the discretion to cancel the visa should be exercised.

The Tribunal first considered whether the applicant had complied with condition 8202 of the Migration Regulations 1994. This condition requires a student visa holder to be enrolled in a registered course. The evidence before the Tribunal established that the applicant had not been enrolled in a registered course since 15 November 2015, a fact not disputed by the applicant. Consequently, the Tribunal found that the applicant had failed to comply with condition 8202(2).

Having found a breach of a visa condition, the Tribunal then considered the discretion to cancel the visa. The Tribunal had regard to the applicant's original purpose for travel, which was to study, and found no compelling need for the applicant to remain in Australia, noting their current indecision about a study path. While acknowledging that visa cancellation might cause hardship, the Tribunal found that the applicant had not demonstrated a significant level of hardship. The Tribunal concluded that the failure to maintain enrolment and engage in a course of study constituted a fundamental breach of a student visa, which weighed against the applicant. Accordingly, the Tribunal affirmed the decision to cancel the applicant's visa.