RAHUL (Migration)

This matter concerned an appeal by an applicant against the cancellation of their Student (Temporary) (Class TU) visa, subclass 573 Higher Education Sector. The visa was cancelled by the Department on the grounds that the applicant had breached condition 8202 of the Migration Regulations 1994 by failing to remain enrolled in a registered course of study. The applicant had ceased attending their course in the second semester of 2015 and was not enrolled in any registered course between August 2015 and September 2016, a period of 13 months.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of the Migration Regulations 1994, specifically subclause (2)(a) which requires the 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, having regard to the circumstances presented by the applicant. The applicant had provided reasons for the cessation of studies, including the death of family members and property disputes, and also raised concerns about potential financial hardship if the visa were cancelled, as well as the impact on their relationship with their Australian permanent resident spouse.

The Tribunal found that the applicant had indeed breached condition 8202(2)(a) by failing to maintain enrolment in a registered course for an extended period. While acknowledging the applicant's stated reasons for the cessation of studies and the potential for some financial hardship, the Tribunal concluded that these factors did not outweigh the breach of the visa conditions. The Tribunal noted that the applicant had ceased all studies in Australia around May 2015, despite their initial intention to study. The Tribunal also considered the consequences of cancellation, including the applicant becoming an unlawful non-citizen, potential detention, and limitations on applying for further visas in Australia, but ultimately determined that these did not necessitate a refusal to affirm the cancellation.

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