SAMA (Migration)

This matter concerned the review of a decision to cancel the applicant's Student (Temporary) (Class TU) visa, Subclass 573 Higher Education Sector. The applicant had ceased studies due to alleged financial hardship and had subsequently changed to English courses. The Administrative Appeals Tribunal, with Member Wendy Banfield presiding, was tasked with determining whether the visa cancellation was justified.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of Schedule 8 to the Migration Regulations 1994. Specifically, the Tribunal had to ascertain if the applicant remained enrolled in a registered course, achieved satisfactory course progress, and maintained satisfactory course attendance as required by the condition. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa under section 116(1) of the Migration Act 1958.

The Tribunal found that the applicant had breached condition 8202(2) by not being enrolled in a registered course during the period of April 2016 to January 2017, acknowledging this failure due to financial difficulties. While the applicant expressed a desire to complete his MBA for career and family reasons, the Tribunal was not satisfied that he had a compelling need to remain in Australia, noting his delay in seeking re-enrolment and obtaining a new offer of study only shortly before the hearing. The Tribunal also considered the claimed hardship, finding it insufficient to outweigh the fundamental breach of a student visa condition. Consequently, the Tribunal affirmed the decision to cancel the applicant's visa.