Sharma (Migration)

This matter concerned an application by the applicant, a holder of a Higher Education Sector (Class TU) visa (Subclass 573), to review the decision to cancel her visa. The cancellation was based on the applicant's failure to comply with condition 8202 of the Migration Regulations 1994, specifically by not being enrolled in a registered course of study since 22 June 2017. The applicant accepted the factual basis for the cancellation. The Administrative Appeals Tribunal (AAT) considered whether to exercise its discretion to set aside the cancellation decision.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of the Migration Regulations 1994, which requires a student visa holder to be enrolled in a registered course. If a breach was established, the Tribunal then had to consider whether, in the exercise of its discretion, the visa cancellation should be affirmed or set aside, having regard to the circumstances presented by the applicant. These circumstances included the death of her financial guarantor grandfather, her mother's subsequent financial difficulties, and the refusal of her husband's student dependent visa application, which she claimed affected her emotional state and ability to concentrate on her studies. The Tribunal also considered whether cancelling the visa would breach any international obligations, such as non-refoulement or the best interests of children.

The Tribunal found that the applicant had indeed breached condition 8202(2)(a) of the Regulations by failing to be enrolled in a registered course since 22 June 2017, a fact the applicant admitted. In considering the exercise of discretion, the Tribunal placed low weight on the applicant's stated reasons for the non-enrolment, finding them insufficient to outweigh the breach of the visa condition. The Tribunal also found no indication that cancelling the visa would breach any international obligations, noting the applicant did not express significant fear of returning to India, although she raised concerns about her husband's behaviour.

Ultimately, the Tribunal concluded that, considering all the circumstances, the decision to cancel the applicant's visa should be affirmed.