Nakul (Migration)

This matter concerned the cancellation of a Student (Temporary) (Class TU) visa, subclass 500, held by the applicant, Nakul. The ground for cancellation was that the applicant was not enrolled in a registered course, having had his enrolment cancelled by Charles Darwin University for unsatisfactory course progress. The applicant contended that his health issues and difficulties in obtaining an academic standing letter from Charles Darwin University were significant factors. The Administrative Appeals Tribunal was required to determine whether a ground for cancellation existed and, if so, whether to exercise its discretion to cancel the visa.

The Tribunal was tasked with assessing whether the applicant's failure to maintain satisfactory course progress was substantially caused by circumstances beyond his control, specifically his health. It also had to consider the applicant's efforts to re-enrol in a course and the reasons for the delay in doing so. The Tribunal was then required to decide whether, in light of all the circumstances, the discretion to cancel the visa should be exercised in favour of the applicant.

The Tribunal found that the applicant's health had not significantly contributed to his failure to maintain satisfactory course progress. It noted that the applicant had continued to work during the period he claimed to be unwell and that his work was less affected than his studies. Furthermore, the Tribunal observed that the applicant's enrolment at the International College of Advanced Education occurred shortly after receiving a notice of intention to consider cancellation, and his explanation for this timing was not entirely convincing. The Tribunal concluded that there was a ground for cancellation under s.116(1)(b) of the Migration Act 1958 (Cth) and, after considering the relevant circumstances, affirmed the delegate's decision to cancel the visa.