Sharma (Migration)

This matter concerned an application by an Indian citizen, who held a Class TU (Student) subclass 573 (Higher Education Sector) visa, to review a decision to cancel that visa. The applicant had been granted the visa based on his enrolment in a Diploma of Management. The Minister's delegate formed an intention to cancel the visa on the grounds that the applicant had failed to comply with condition 8202, specifically that he had not been enrolled in a registered course of study since 15 February 2017.

The primary legal issue before the Tribunal was whether to exercise its discretion to cancel the applicant's visa, having found that he had not complied with condition 8202. The Tribunal was required to consider the applicant's explanation for his non-compliance, which included significant personal and family circumstances, and weigh these against the seriousness of the breach.

The Tribunal acknowledged that the applicant had not complied with condition 8202, as he was not enrolled in a registered course. However, it found that the applicant's non-compliance was mitigated by extenuating emotional circumstances, including the serious illness of his sister and father, which had a profound impact on him. The Tribunal also placed favourable weight on the applicant's immaturity, noting he was only twenty years old upon arrival in Australia, suggesting his non-compliance was not due to wilful malice. The Tribunal concluded that the cumulative weight of the evidence favoured reinstating the visa, finding the applicant to be a genuine student with a willingness to study and return to his home country.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa. The Tribunal noted that the applicant would need to apply for a new visa, as his current visa subclass was no longer available due to regulatory changes.