SIBUNARYA (Migration)

This matter concerned an appeal by Boni Sibunarya against the cancellation of his Student (Temporary) (Class TU) visa, Subclass 573 (Higher Education Sector). The dependent visas of his three family members were automatically cancelled as a consequence of the cancellation of Mr. Sibunarya's visa. The Tribunal determined that it only had jurisdiction to consider the decision relating to the first applicant, Mr. Sibunarya, as no separate decision was made regarding the cancellation of the dependent visas.

The primary legal issue before the Tribunal was whether Mr. Sibunarya 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. 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. Sibunarya had not complied with condition 8202(2)(a) as he conceded he was not enrolled in a registered course of study for a specified period. Despite this breach, the Tribunal exercised its discretion not to cancel the visa. It reasoned that while the applicant had not maintained continuous enrolment, he had provided explanations for these lapses, including his own illness, the death of his parents, and the birth of a child with congenital health issues. The Tribunal also considered the significant hardship that cancellation would cause to Mr. Sibunarya and his family, including the potential impact on his wife's employment and his children's schooling, as well as the limited future visa options available to him if he were to depart Australia. The Tribunal concluded that these factors weighed in favour of allowing the visa to continue.