Manjunath (Migration)

This matter concerned an appeal by an applicant against the cancellation of their Student (Temporary) (Class TU) visa, Subclass 573 (Higher Education Sector). The dispute centred on whether the applicant had failed to comply with a condition of their visa, specifically regarding enrolment in a registered course, and whether the discretion to cancel the visa had been exercised appropriately. The decision was made by Brendan Darcy, a Member of the Tribunal.

The primary legal issue before the Tribunal was to determine if the applicant had failed to comply with a condition of their visa, thereby triggering a ground for cancellation under s.116(1)(b) of the Migration Regulations 1994. If a failure to comply was established, the Tribunal was then required to consider whether to exercise its discretion to cancel the visa, taking into account all relevant circumstances.

The Tribunal found that the applicant had not failed to comply with a condition of the visa, and therefore the ground for cancellation under s.116(1)(b) did not arise. However, the provided text then appears to contradict this finding by stating, "Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled." The Tribunal considered various factors, including the applicant's stated intention to complete a Master's degree, financial difficulties, a serious workplace accident, alopecia, and the applicant's enrolment in two new Master's degrees after their initial enrolment was cancelled. Despite acknowledging the applicant's initial intention and some extenuating circumstances, the Tribunal ultimately placed more weight on factors favouring cancellation.

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