Sharma (Migration)

The Administrative Appeals Tribunal affirmed the decision to cancel the Subclass 573 Higher Education Sector visa held by the applicant, Mr. Sharma. The dispute concerned whether the grounds for visa cancellation under section 116(1)(fa)(i) of the Migration Act 1958 (Cth) were met, and if so, whether the discretion to cancel the visa should be exercised. The applicant had arrived in Australia in July 2016 on a student visa to undertake a Bachelor of Business, but his enrolment was cancelled in May 2017. He subsequently experienced periods of non-enrolment and failed to maintain enrolment at the same or a higher level than that for which his visa was granted, breaching condition 8202.

The Tribunal was required to determine if the applicant was a "genuine student" as contemplated by section 116(1)(fa)(i) of the Act, or if he had engaged in conduct not contemplated by the visa under section 116(1)(fa)(ii). The Tribunal also had to consider whether to exercise its discretion to cancel the visa, having regard to all relevant circumstances, including those outlined in the Department's Procedures Advice Manual and the applicant's submissions. The prescribed matters under regulation 2.43 of the Migration Regulations 1994 were also relevant to determining if the ground for cancellation existed.

The Tribunal reasoned that the applicant had not completed any course of study since his arrival in Australia and had been out of enrolment for significant periods, including a period of over six months, which constituted a breach of his visa conditions. Furthermore, the applicant's explanations for his enrolment changes and cancellations were inconsistent, and he was currently enrolled in a lower-level course in a different subject area than originally intended. While acknowledging circumstances such as a college closure and parental health issues, the Tribunal found that the applicant's overall conduct did not demonstrate he was a genuine student. The Tribunal also noted that the applicant no longer sought the qualification for which the visa was granted, suggesting no compelling need to remain in Australia for the original purpose.

Consequently, the Tribunal affirmed the decision to cancel the applicant's visa.