Sadhu (Migration)

This matter concerned an appeal by an applicant against the cancellation of their Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa. The applicant's visa was cancelled under section 116(1) of the Migration Act 1958 (Cth) on the basis that they had breached a condition of their visa. The Tribunal was required to determine whether the applicant had indeed breached a visa condition and, if so, whether the discretion to cancel the visa should be exercised.

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 visa holder to be enrolled in a registered course. The Tribunal considered evidence that the applicant was not enrolled in a registered course of study from 18 October 2016 until 28 July 2017. The Tribunal also considered whether there were any compelling reasons not to cancel the visa, including any potential breach of international obligations or other relevant matters raised by the applicant.

The Tribunal found that the applicant had failed to comply with condition 8202(2)(a) of their visa, as they were not enrolled in a registered course of study during the specified period. The applicant's explanation for this period, involving a summer break and difficulty recalling specific course subjects, was given low weight by the Tribunal. Furthermore, the Tribunal found no evidence of any international obligations being breached by the cancellation, nor did the applicant raise any other relevant factors. The Tribunal concluded that the circumstances leading to the non-enrolment were not exceptional and, considering all matters, the discretion to cancel the visa was exercised.

The Tribunal affirmed the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.