Njoroge (Migration)

This matter concerned an appeal by the applicant, Mr. Njoroge, against the cancellation of his Student (Temporary) (Class TU) visa, Subclass 500. The dispute arose because the applicant was not enrolled in a full-time registered course, which constituted a breach of condition 8202 of the Migration Regulations 1994 (Cth). The decision under review was made by the Administrative Appeals Tribunal (AAT), presided over by Member Joseph Lindsay.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of his student visa, specifically the requirement to be enrolled in a full-time registered course. If a breach was established, the Tribunal was then required to consider whether, in the exercise of its discretion, the visa cancellation should be affirmed, taking into account the circumstances presented by the applicant.

The Tribunal found that the applicant had indeed breached condition 8202(2)(a) of the Regulations, as he had not been enrolled in a registered course of study between 21 November 2018 and 17 March 2021. While the applicant explained this period of non-enrolment was due to significant personal stress stemming from his mother's death prior to his arrival in Australia, and his aunt's and father's subsequent illnesses, the Tribunal noted that the applicant had remained unenrolled for a considerable time after receiving notice from the Department. Furthermore, his current enrolments were at lower qualification levels and in a different subject area. Balancing these factors, the Tribunal concluded that the discretion to cancel the visa should be exercised, and therefore affirmed the decision to cancel the applicant's visa.