Sigdel (Migration)

This matter concerned an appeal by a visa holder 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 the Migration Regulations 1994, specifically by not being enrolled in a registered course of study. The applicant had been notified of the intention to cancel their visa due to a prolonged period of non-enrolment, which commenced on 20 July 2015 and was still ongoing at the time of the notice in September 2016.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of the Migration Regulations 1994, and if so, whether the discretion to cancel the visa should be exercised. Condition 8202 requires a student visa holder to be enrolled in a registered course and to maintain satisfactory course progress and attendance. The Tribunal was required to consider the applicant's submissions regarding their reasons for non-enrolment, including a change of study preference and personal health issues, as well as the potential hardship that cancellation might cause.

The Tribunal found that the applicant had indeed breached condition 8202(2)(a) by failing to be enrolled in a registered course for an extended period of approximately 15 months. In considering the exercise of discretion, the Tribunal acknowledged the applicant's stated reasons for the breach and the potential financial hardship and liability for detention and removal if the visa were cancelled. However, the Tribunal weighed these factors against the significant breach of the visa conditions and government policy. The Tribunal concluded that the prolonged period of non-enrolment was a significant factor, and the degree of hardship did not outweigh the grounds for cancellation.

Consequently, the Tribunal affirmed the decision to cancel the applicant's visa. The applicant would be subject to section 48 of the Migration Act 1958, limiting their ability to apply for further visas in Australia, and potentially a three-year bar on obtaining a temporary visa under Public Interest Criterion 4013.