Mumtaz (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's visa was cancelled on the grounds that they had failed to comply with condition 8202 of the Migration Regulations 1994, specifically by not being enrolled in a registered course of study. The Tribunal was required to determine whether the applicant had breached this condition and, if so, whether the decision to cancel the visa should be affirmed.

The central legal issue was whether the applicant had complied with condition 8202 of their visa. This condition mandates that a student visa holder must be enrolled in a registered course, achieve satisfactory course progress, and maintain satisfactory course attendance. The evidence before the Tribunal indicated that the applicant had not been enrolled in a registered course since 28 July 2016, thereby failing to meet the requirements of condition 8202(2). Consequently, the Tribunal found that the applicant had breached a condition of their visa, which empowered the Minister to cancel the visa under section 116(1) of the Migration Act 1958.

In considering the exercise of discretion regarding visa cancellation, the Tribunal had regard to the circumstances of the case, including the applicant's stated reasons for discontinuing studies: family sickness, personal depression, and financial difficulties. However, the Tribunal found the breach to be significant, as the applicant had not been engaging in the study for which the visa was granted and had been offshore since August 2017. The Tribunal noted the absence of compelling reasons for the applicant to return to Australia and concluded that the applicant's prolonged non-engagement in study weighed heavily in favour of cancellation. The Tribunal affirmed the decision to cancel the applicant's visa.