Patel (Migration)

This matter concerned an appeal by Mr Patel against the cancellation of his Subclass 500 Student visa. The applicant, a citizen of India, had previously held student visas to study in Australia. His enrolment in a Bachelor of Information Technology was cancelled due to unsatisfactory course progress, and a subsequent Bachelor of Business enrolment was cancelled for non-payment of fees. The visa under review was granted on 24 May 2019, and its cancellation was based on the applicant not being enrolled in a registered course from 30 August 2019 until the delegate's decision on 15 December 2021.

The primary legal issue before the Tribunal was whether Mr Patel had breached condition 8202 of the Migration Regulations 1994, which requires a student visa holder to be 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 (Cth). The applicant also raised personal circumstances, including an alleged assault and subsequent mental health issues, as reasons for his non-compliance and sought to rely on a new enrolment made shortly before the delegate's decision.

The Tribunal found that the applicant had indeed breached condition 8202(2) of his visa, as he confirmed he was not enrolled in a registered course from 30 August 2019 to 15 December 2021. Despite the applicant's submissions regarding his personal circumstances, including trauma and difficulties with his education provider regarding fee payments and enrolment, the Tribunal concluded that these did not outweigh the established breach of the visa condition. The Tribunal considered the applicant's claims but ultimately determined that the grounds for cancellation under section 116(2)(b) were met.

The Tribunal affirmed the decision to cancel Mr Patel's Subclass 500 Student visa.