SHARMA (Migration)

This matter concerned an appeal to the Tribunal regarding the cancellation of the applicant's Subclass 573 Higher Education Sector Student visa. The applicant had been granted the visa to undertake a Diploma and a Bachelor of Business. The core of the dispute revolved around whether the applicant had complied with the conditions of his visa, specifically concerning his engagement as a genuine student.

The Tribunal was required to determine if the ground for cancellation under section 116(1)(fa)(i) of the Migration Act 1958 (Cth) was made out, which relates to a student visa holder not being, or likely not to be, a genuine student. If this ground was established, the Tribunal then had to consider whether to exercise its discretion to affirm the cancellation, taking into account all relevant circumstances.

The Tribunal found that the applicant had not completed any courses of study for over three years and had not been enrolled in a course at the appropriate level for a substantial period. While acknowledging the applicant's stated difficulties, including family medical issues, financial problems, and issues with a migration agent and educational institution, the Tribunal gave these factors limited weight. It reasoned that many of these difficulties arose after the applicant had already breached his visa conditions, and that it was ultimately the applicant's responsibility to ensure compliance. The Tribunal concluded that the ground for cancellation was established and that the circumstances warranted the exercise of discretion to affirm the cancellation.

The Tribunal affirmed the decision to cancel the applicant's Subclass 573 visa.