Mirza (Migration)

The Administrative Appeals Tribunal considered whether to affirm the decision to cancel the applicant's Student (Temporary) (Class TU) visa, Subclass 573 (Higher Education Sector). The applicant's visa was cancelled on the grounds that they had breached condition 8202 of the Migration Regulations 1994 by not being enrolled in a registered course.

The Tribunal was required to determine if the applicant had complied with condition 8202, which mandates enrolment in a registered course and satisfactory course progress and attendance. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, taking into account factors such as the purpose of the applicant's stay, any compelling need to remain in Australia, the extent of compliance with visa conditions, and the degree of hardship that might be caused by cancellation.

The Tribunal found that the applicant had not complied with condition 8202(2) as they were not enrolled in a registered course from October 2017 to August 2018, and confirmed they had not studied after September 2017. The Tribunal also noted a breach of condition 8516, as the applicant was required to study in the higher education sector. While acknowledging the applicant's desire to prove themselves to their parents and the emotional hardship that cancellation might cause, particularly to their mother, the Tribunal concluded that these factors did not demonstrate a compelling need to remain in Australia. The Tribunal considered the failure to maintain enrolment and engage in study to be a fundamental breach of a student visa.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's visa, finding that the circumstances as a whole weighed against exercising discretion to set aside the cancellation.