Nagra (Migration)

This matter concerned an appeal by an applicant against the cancellation of his Student (Temporary) (Class TU) Subclass 573 Higher Education Sector visa. The applicant had been found to be not enrolled in a registered course of study for a substantial period, specifically between 24 February 2016 and 16 December 2016. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant had breached his visa conditions and, if so, whether the cancellation of his visa was warranted.

The primary legal issue before the Tribunal was whether the applicant had complied with condition 8202(2) of his visa, which mandates that a holder must be enrolled in a registered course. The Tribunal also considered the exercise of discretion regarding the cancellation of the visa, having found a breach of the conditions. The applicant had provided a response to the Department's notice of intention to cancel his visa, stating he had completed a Diploma of Management and was enrolled in a similar course, but the delegate noted this enrolment occurred after the notice was issued and was not at the Higher Education sector level.

The Tribunal reasoned that the applicant had indeed breached condition 8202(2) by failing to be enrolled in a registered course for a significant period. While acknowledging the applicant had completed two registered courses prior to this period of non-compliance, the Tribunal found that this did not outweigh the substantial subsequent breach. The Tribunal noted the applicant had not provided any information regarding illness or hardship that might explain the non-compliance, nor had he provided further information to the Tribunal when invited to do so, despite having been alerted to the issue by the Department. The Tribunal concluded that the applicant had not demonstrated a compelling need to remain in Australia during the period of non-compliance and would not face particular hardship if the visa were cancelled.

Consequently, the Tribunal affirmed the decision to cancel the applicant’s Class TU visa.