Ngetich (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Student (Temporary) (Class TU) visa, Subclass 573, was cancelled. The cancellation was based on the applicant's failure to maintain enrolment in a registered course, a breach of condition 8202 of the Migration Regulations 1994. The applicant, an 18-year-old Kenyan citizen who arrived in Australia in February 2016, had been enrolled in a series of courses including a Certificate IV in Tertiary Preparation, a Diploma of Science (Health Studies), and a Bachelor of Science (Nursing).

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of the Migration Regulations 1994, specifically by not being enrolled in a registered course. If a breach was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa under section 116(1) of the Migration Act 1958. The Tribunal also considered the applicant's personal circumstances, including his relationship with an Australian citizen, the birth of children to the relationship, his subsequent separation from his partner and children, and claims of financial hardship.

The Tribunal found that the applicant had indeed breached condition 8202(2) as he had not been enrolled in a registered course since 3 April 2018, a fact admitted by the applicant. Despite acknowledging the applicant's honest testimony, his initial intention to study in Australia, and the potential hardship cancellation might cause to his children and his former partner, the Tribunal ultimately affirmed the decision to cancel the visa. The Tribunal noted that avenues were available for the applicant to apply for other visas to remain in Australia.