Priyank (Migration)

This matter concerned an appeal by an applicant against the cancellation of his Student (Temporary) (Class TU) visa, Subclass 573 (Higher Education Sector). The applicant's visa was cancelled by the delegate on the basis that he had not been enrolled in a registered course of study for a significant period, thereby breaching a condition of his visa. The Tribunal was required to determine whether the applicant had breached condition 8202 of the Migration Regulations 1994 and, if so, whether the decision to cancel his visa should be affirmed.

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 of study and to maintain satisfactory course progress and attendance. The applicant's visa was cancelled because information indicated he had not been enrolled in a registered course between August 2015 and August 2016. The Tribunal also considered whether, having found a breach, it should exercise its discretion to cancel the visa.

The Tribunal found that the applicant had not been enrolled in a registered course for approximately 11.5 months, from 17 August 2015 to 1 August 2016. The applicant obtained a Confirmation of Enrolment (COE) for a Master's degree on 7 February 2017, which was one day after the delegate's decision to cancel his visa. The Tribunal accepted that the applicant had not been enrolled in a registered course during the specified period and therefore had not complied with condition 8202(2). In considering the discretion to cancel the visa, the Tribunal noted the applicant's stated intention to study in Australia, but found that his prolonged period of non-enrolment was a significant breach. The Tribunal also considered the applicant's personal circumstances, including family in India, but took into account country information indicating that India has a robust higher education system.

The Tribunal affirmed the decision to cancel the applicant's visa.