Shafait (Migration)

This matter concerned an appeal by a student visa holder against the cancellation of their visa. The applicant's Class TU (Student) visa was cancelled on the basis that they had breached condition 8202 of the Migration Regulations 1994 by failing to be enrolled in a registered course of study for a period between February and July 2017. The applicant contended that personal circumstances, including the illness and death of their grandmother, their sister's divorce, and the death of their uncle, provided reasons for their non-compliance.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of their visa, and if so, whether the discretion to cancel the visa should be exercised. Condition 8202 requires a student visa holder to be enrolled in a registered course and to maintain satisfactory course progress and attendance. The Tribunal was required to determine if the applicant's failure to be enrolled in a registered course constituted a breach, and then to consider the applicant's stated reasons for this non-compliance when deciding whether to affirm the cancellation.

The Tribunal found that the applicant had indeed breached condition 8202(2) as they were not enrolled in a registered course of study between February and July 2017, a fact confirmed by the applicant. While the Tribunal acknowledged the personal circumstances raised by the applicant, it found them insufficient to excuse the breach. Specifically, the dates provided for the grandmother's death and the sister's divorce predated the period of non-enrolment, and the applicant's explanation for his grandmother's death lacked clarity. The Tribunal considered the purpose of the student visa, which is to enable study in Australia, and concluded that the applicant's prolonged non-engagement in study was a significant breach, as it undermined the very purpose of their stay.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's visa. It reasoned that the applicant's failure to comply with a fundamental condition of their visa, coupled with the absence of compelling reasons for them to remain in Australia, weighed in favour of cancellation. The Tribunal recognised the seriousness of visa cancellation but concluded, on balance, that the circumstances supported the decision.