SHARMA (Migration)

This matter concerned the review of a decision to cancel the applicant's Student (Temporary) (Class TU) Subclass 573 Higher Education Sector visa. The applicant contended that the cancellation decision should not be affirmed, arguing for discretion to be exercised in his favour on compassionate grounds. The Tribunal was required to determine whether the applicant had breached a condition of his visa and, if so, whether the discretion to cancel the visa should be exercised.

The primary legal issue was whether the applicant had complied with condition 8202 of Schedule 8 to the Migration Regulations 1994. This condition requires a student visa holder to be enrolled in a registered course and to maintain satisfactory course progress and attendance. The applicant did not dispute that he had not been enrolled in a registered course for the period between April 2016 and February 2017, which was the basis for the cancellation.

The Tribunal found that the applicant had indeed breached condition 8202(2) by failing to maintain enrolment in a registered course. In considering the exercise of discretion to cancel the visa, the Tribunal had regard to the applicant's stated purpose of study, his personal circumstances including the death of his father and his mother's role in his coming to Australia, and his cultural responsibility to care for his mother. While acknowledging the applicant's current enrolment and future plans to open a restaurant, the Tribunal concluded that these factors did not demonstrate a compelling need to remain in Australia. The Tribunal was not satisfied that the applicant had a powerful or convincing reason to stay, and therefore affirmed the decision to cancel the visa.