Sharma (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Student (Temporary) (Class TU) visa, subclass 573, was cancelled. The cancellation was based on the applicant's failure to maintain enrolment in a registered course, a breach of condition 8202 of the Migration Regulations 1994. The applicant, who had initially enrolled in a higher education course but found it too difficult, subsequently changed to a vocational course. However, the education provider for this vocational course subsequently closed, and the applicant claimed the provider failed to arrange alternative enrolment as required.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of the Migration Regulations 1994, specifically by not being enrolled in a registered course. If a breach was established, the Tribunal then had to consider whether to exercise its discretion to affirm the cancellation of the visa. Condition 8202 requires a student visa holder to be enrolled in a registered course and to achieve satisfactory academic progress and attendance.

The Tribunal found that the applicant had not been enrolled in a registered course for a significant period, from September 2017 to July 2018. While acknowledging the difficulties caused by the closure of the applicant's education provider and expressing some sympathy for his situation, the Tribunal determined that the applicant bore responsibility for maintaining his enrolment and had failed to notify the Department of his difficulties. The Tribunal concluded that these circumstances were not entirely beyond the applicant's control and that he had not demonstrated a compelling need to remain in Australia, particularly given his expressed desire to work in hospitality in India and existing job offers there. The Tribunal also noted that the applicant had not completed any course of study since his arrival in Australia in July 2016.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's visa, finding that the breach of condition 8202 was significant and that there were no compelling reasons to exercise discretion in favour of the applicant.