SHARMA (Migration)

This matter concerned an appeal by Mr. Sharma against the cancellation of his Student (Temporary) (Class TU) visa, Subclass 573 (Higher Education Sector). The appeal was heard by the Tribunal, presided over by Member Wendy Banfield. The core dispute revolved around whether Mr. Sharma had breached condition 8202 of the Migration Regulations 1994, which mandates that a student visa holder must be enrolled in a registered course and maintain satisfactory academic progress and attendance.

The Tribunal was required to determine if Mr. Sharma had complied with condition 8202 of his visa. Specifically, the Tribunal had to ascertain whether he was enrolled in a registered course of study as required by regulation 8202(2)(a). If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, taking into account various factors including the purpose of the visa holder's stay, any compelling need to remain in Australia, the extent of compliance with other visa conditions, and the degree of hardship that might be caused by cancellation.

The Tribunal found that Mr. Sharma had breached condition 8202(2)(a) as he was not enrolled in a registered course for a period of approximately ten months, from 4 May 2018 to 4 March 2019, as evidenced by the Provider Registration and International Student Management System (PRISMS). While acknowledging that the failure to maintain enrolment constituted a fundamental breach of a student visa, the Tribunal considered the exercise of its discretion. It found that Mr. Sharma had not demonstrated a compelling need to remain in Australia, despite his stated desire to obtain an Australian qualification and his father's wishes. Although some hardship would be caused by the cancellation, the Tribunal concluded that, on balance, the visa should be cancelled.

The Tribunal affirmed the decision to cancel Mr. Sharma's Class TU visa.