MULKALA (Migration)

This matter concerned an appeal by the applicant, a holder of a Student (Temporary) (Class TU) visa, Subclass 573 (Higher Education Sector), against the cancellation of his visa. The dispute centred on whether the applicant had breached a condition of his visa, and if so, whether the discretion to cancel the visa should be exercised. The decision was made by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of Schedule 8 to the Migration Regulations 1994. Specifically, the Tribunal had to determine if the applicant had failed to maintain enrolment in a registered course between 28 April 2017 and 11 December 2017, as alleged by the delegate. If a breach was established, the Tribunal was then required to consider whether to exercise its discretion to cancel the visa, taking into account the circumstances of the case.

The Tribunal found that the applicant had indeed breached condition 8202(2)(a) of his visa, as he was not enrolled in a registered course during the specified period. This finding was based on departmental records and the applicant's own admissions in his response to the Notice of Intention to Consider Cancellation, which he did not dispute before the Tribunal. In considering the discretion to cancel, the Tribunal assessed factors including the purpose of the applicant's stay, his compliance with other visa conditions, and the potential hardship. The Tribunal concluded that the applicant had not demonstrated a compelling need to remain in Australia and that the grounds for cancellation outweighed any reasons not to cancel.

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