Sharma (Migration)

The Administrative Appeals Tribunal considered the case of Sharma, an applicant whose Student (Temporary) (Class TU) visa, Subclass 573 Higher Education Sector, was cancelled. The dispute centred on whether the applicant had breached condition 8202 of the Migration Regulations 1994, which governs compliance with study requirements for student visa holders.

The Tribunal was required to determine if the applicant had failed to comply with condition 8202. This condition mandates that a visa holder must be enrolled in a registered course, achieve satisfactory course progress, and maintain satisfactory course attendance, as certified by their education provider. The cancellation was based on the assertion that the applicant was not enrolled in a registered course.

The Tribunal found that while the applicant had not pursued a higher education course as initially intended by her visa, she had maintained her enrolment in registered vocational courses. She had encountered difficulties, including the closure of an educational institution and the inability to transfer credits, but had continued to study and re-enrolled in subjects to maintain her academic standing. The Tribunal concluded that the applicant had not breached condition 8202 and, therefore, the grounds for cancellation under s 116(1) of the Migration Act 1958 did not arise. Furthermore, even if a breach had occurred, the Tribunal considered the applicant's circumstances, including her genuine desire to complete her studies and her compelling need to remain in Australia to achieve her career aspirations, and exercised its discretion not to cancel the visa.

Consequently, the Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel it.