Pathak (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Student (Temporary) (Class TU) visa, subclass 572, was cancelled. The dispute centred on whether the applicant had breached condition 8202 of the Migration Regulations 1994, which mandates enrolment in a registered course and satisfactory course progress and attendance. If a breach was established, the Tribunal then had to determine whether to exercise its discretion to cancel the visa.

The primary legal issue before the Tribunal was whether the applicant had complied with condition 8202 of Schedule 8 to the Migration Regulations 1994. This condition requires a student visa holder to be enrolled in a registered course and to achieve satisfactory course progress and attendance, as certified by their education provider. The Tribunal was required to assess the evidence regarding the applicant's enrolment status and academic performance to determine if a breach had occurred, and if so, to consider the exercise of discretion regarding visa cancellation.

The Tribunal found that the applicant had not complied with condition 8202(2) as they had not been enrolled in a registered course since October 2014, despite their visa being granted for the purpose of study. The applicant acknowledged the accuracy of information from the Provider Registration and International Student Management System (PRISMS) indicating cancelled enrolments due to unsatisfactory course progress and a lack of subsequent enrolment. In considering the discretion to cancel the visa, the Tribunal weighed the applicant's stated purpose of study against the reality of their prolonged period of non-enrolment and admission to working rather than studying. The Tribunal also considered the applicant's parents' expectations and the potential hardship of cancellation, but concluded that these factors did not outweigh the significant non-compliance with visa conditions.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's Class TU visa, finding that the applicant had failed to comply with a condition of their visa and that the circumstances warranted the exercise of discretion to cancel.