Mohammed (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 applicant had ceased studies and demonstrated limited academic progress, citing health concerns. The decision under review was made by the Administrative Appeals Tribunal (AAT), with Member Wendy Banfield presiding.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of Schedule 8 to the Migration Regulations 1994, which requires a student visa holder to be enrolled in a registered course and to achieve 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 under section 116(1) of the Migration Act 1958.

The Tribunal found that the applicant had not complied with condition 8202(2) as they were not enrolled in a registered course for a significant period. While the applicant cited depression as the reason for ceasing studies and provided some medical evidence, the Tribunal was not satisfied that these circumstances were beyond their control or that the evidence sufficiently supported a compelling need to remain in Australia. The Tribunal considered the purpose of the visa, the extent of compliance with conditions, and the potential hardship, ultimately concluding that the fundamental breach of failing to maintain enrolment weighed heavily against the applicant and that the issues encountered were not sufficient reason to refrain from cancelling the visa.

Accordingly, the Tribunal affirmed the decision to cancel the applicant’s visa.