Sidhu (Migration)

This matter concerned an appeal by an applicant against the cancellation of their Student (Temporary) (Class TU) visa, Subclass 573 (Higher Education Sector). The visa was cancelled on the grounds that the applicant had failed to comply with condition 8202 of Schedule 8 to the Migration Regulations 1994, specifically by not being enrolled in a registered course. The applicant contended that their non-compliance was due to a medical condition, namely asthma, and associated depression.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202(2) of the Migration Regulations, which requires a student visa holder to be enrolled in a registered course. If a breach was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, having regard to the circumstances surrounding the non-compliance and other relevant factors.

The Tribunal found that the applicant had not been enrolled in a registered course from 14 August 2017 until the date of the visa cancellation on 1 June 2018, thereby breaching condition 8202(2). While accepting that the applicant suffered from asthma and experienced occasional acute attacks, the Tribunal was not convinced that this constituted a reason beyond the applicant's control that excused their failure to maintain enrolment. The applicant had not sought a deferral from their course provider, had not been hospitalised for their condition, and had provided no evidence that they could not have studied during periods of good health. Furthermore, the Tribunal found the evidence regarding depression to be unsubstantiated. Consequently, the Tribunal affirmed the decision to cancel the applicant's visa.