Nerala (Migration)

This matter concerned an appeal by an applicant against the decision of a delegate of the Minister to cancel their Subclass 500 (Student) visa. The cancellation was based on the applicant's alleged failure to comply with condition 8202 of Schedule 8 to the Migration Regulations 1994, specifically by not being enrolled in a registered course of study since 10 October 2017. The applicant affirmed the correctness of this finding during the hearing.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of their student visa. If a breach was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, having regard to various factors including the circumstances of the breach and any hardship that might be caused. Condition 8202 requires a student visa holder to be enrolled in a full-time registered course and to maintain satisfactory course progress and attendance.

The Tribunal found that the applicant had indeed breached condition 8202(2) by not being enrolled in a registered course. In considering the exercise of discretion, the Tribunal noted the applicant's stated reasons for not continuing studies, including his father's financial difficulties and injury, and his own alleged depression. However, the Tribunal found these reasons unconvincing and not beyond the applicant's control. The applicant had the capacity to work and earn a significant amount, had not explored deferring his course or making alternative financial arrangements, and had not provided sufficient evidence to support his claims of hardship or his father's circumstances. The Tribunal concluded that the breach was within the applicant's control.

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