Sharma (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Subclass 573 Higher Education Sector visa was cancelled. The dispute arose from the applicant's failure to maintain enrolment in a registered course of study, which constituted a breach of visa condition 8202(2)(a). The applicant argued that the cancellation should not be affirmed due to various personal circumstances, including difficulties with previous courses, a change in study plans, and financial hardship impacting his ability to pay tuition fees.

The Tribunal was required to determine whether the ground for cancellation under s 116(1)(b) of the Migration Act 1958 (Cth) was established, and if so, whether to exercise its discretion to cancel the visa. Specifically, the Tribunal had to assess if the applicant had ceased to be enrolled in a registered course of study, thereby breaching condition 8202(2)(a). The Tribunal also had to consider the applicant's submissions regarding hardship and the relevant government policy guidelines in deciding whether to affirm the cancellation.

The Tribunal found that the applicant had not been enrolled in a registered course since 28 September 2016, when his enrolment in a Bachelor of Business, a Diploma of Hospitality Management, and a Certificate IV in Commercial Cookery were cancelled. The cancellation of the Certificate IV in Commercial Cookery was due to unsatisfactory attendance. Consequently, the Tribunal was satisfied that the ground for cancellation under s 116(1)(b) was made out. In considering the exercise of discretion, the Tribunal noted the applicant's claims of financial hardship due to his father's business difficulties and his desire to avoid disappointing his parents. However, the Tribunal also observed that the offer of enrolment provided by the applicant in response to the Notice of Intention to Consider Cancellation was for a Certificate III in Commercial Cookery, a course he had previously completed, suggesting the offer may have been obtained solely to address the cancellation notice. On balance, the Tribunal concluded that the visa cancellation should be affirmed.