Sharma (Migration)

The Administrative Appeals Tribunal affirmed the decision to cancel the Student (Temporary) (Class TU) visa, subclass 500 (Student), held by the applicant, Mr. Sharma. The dispute centred on whether the applicant had breached a condition of his visa by failing to be enrolled in a registered course of study and, if so, whether the discretion to cancel his visa should have been exercised in his favour.

The Tribunal was required to determine if the applicant had breached condition 8202(2) of his visa, which mandates enrolment in a registered course, and for what duration. Subsequently, the Tribunal had to consider whether, having found a breach, it should exercise its discretion to cancel the visa, taking into account the applicant's circumstances and relevant policy guidelines.

The Tribunal found that the applicant was not enrolled in a registered course of study for approximately 12 months, from 27 July 2017 to 23 July 2018, thereby establishing a continuous breach of condition 8202(2). In considering the discretion to cancel the visa, the Tribunal had regard to the applicant's explanation that a falling out with his uncle, who was expected to provide financial support, led to his inability to pay course fees. This resulted in the cancellation of his Confirmation of Enrolment and his subsequent failure to enrol in further studies, despite receiving subsequent offers. The applicant also cited financial difficulties impacting his ability to concentrate on his studies and his ongoing part-time employment. While the applicant proposed to obtain a bank loan to pay his course fees if his visa were not cancelled, the Tribunal found that his prolonged inability to resolve his financial and enrolment situation since 2017 weighed against exercising discretion in his favour. The Tribunal affirmed the decision to cancel the visa.