Sharma (Migration)

The applicant, Mr Sharma, sought review of a decision to cancel his Student (Temporary) (Class TU) visa, Subclass 573 Higher Education Sector. The dispute centred on whether Mr Sharma had breached condition 8202 of the Migration Regulations 1994, which requires a student visa holder to be enrolled in a registered course and to achieve satisfactory course progress and attendance.

The Tribunal was required to determine if Mr Sharma had complied with condition 8202. Specifically, the Tribunal had to consider whether Mr Sharma was enrolled in a registered course and whether his education provider had certified him as not achieving satisfactory course progress. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa.

The Tribunal found that Mr Sharma had not complied with condition 8202(2) as he was not enrolled in a registered course, his enrolment having been cancelled due to unsatisfactory academic progress. However, in exercising its discretion regarding cancellation, the Tribunal had regard to the circumstances presented. Mr Sharma, a young Indian national, faced significant challenges upon commencing his studies, including academic and language difficulties, shyness, and immaturity in seeking assistance. These were compounded by his mother's serious illness in India, which led to his father ceasing work and financial support. The Tribunal found Mr Sharma's explanation candid and persuasive, noting his self-reflection and a demonstrated mature understanding of his previous shortcomings and a genuine desire to study in Australia.

Consequently, the Tribunal set aside the decision to cancel Mr Sharma's visa and substituted a decision not to cancel it.