Qaiser (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Student (Temporary) (Class TU) visa, subclass 500, held by the applicant. The dispute arose from the applicant's alleged failure to comply with a condition of their visa, leading to the cancellation of their visa by the delegate.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of the Migration Regulations 1994, which requires a student visa holder to be enrolled in a full-time registered course and to maintain satisfactory course progress and attendance. If a breach was found, the Tribunal was then required to consider whether to exercise its discretion to cancel the visa.

The Tribunal found that the applicant had not complied with condition 8202(2) as they were not enrolled in a registered course of study for the period between 6 November 2017 and 15 October 2018. The applicant affirmed the correctness of this finding. In considering the discretion to cancel the visa, the Tribunal had regard to factors including the purpose of the applicant's stay, the extent of compliance with visa conditions, the hardship that cancellation might cause, and the circumstances in which the ground for cancellation arose. While acknowledging some potential financial and emotional hardship, the Tribunal gave this factor little weight. The applicant's explanation for non-compliance included his father's hospitalisation in Pakistan, leading to his absence from Australia, and difficulties in paying course fees due to his parents' inability to assist. However, the applicant had not sought to defer his course or arrange instalment payments for fees, nor had he successfully obtained employment to fund his studies. The Tribunal concluded that the circumstances did not warrant exercising discretion against cancellation.

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