Subedi (Migration)

This matter concerned an appeal by the applicant against the cancellation of his Student (Temporary) (Class TU) visa, Subclass 573 Higher Education. The applicant had been enrolled in a Bachelor of Information Technology course but had failed to maintain enrolment for a period of ten months, from 11 August 2016 to 13 June 2017, and had also not paid his course fees. The Department of Immigration and Border Protection had issued a Notice of Intention to Consider Cancellation (NOICC), to which the applicant responded, citing personal hardships including financial difficulties and family illness. The decision under review was made by the Administrative Appeals Tribunal (AAT), presided over by Member Wendy Banfield.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of Schedule 8 to 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 under section 116(1) of the Migration Act 1958. The applicant did not dispute that grounds existed for cancellation, but sought to rely on personal hardships as mitigating factors.

The Tribunal found that the applicant had indeed breached condition 8202(2) of the Regulations, as he was not enrolled in a registered course during the specified period. In considering the exercise of discretion to cancel the visa, the Tribunal had regard to the applicant's stated purpose for travelling to Australia, which was to study and obtain a Bachelor's degree, and his submissions regarding a compelling need to remain in Australia to complete his studies and enhance his career prospects. Despite acknowledging the applicant's original intention to study and the personal hardships he experienced, the Tribunal concluded that there was no compelling need for him to remain in Australia.

Consequently, the Tribunal affirmed the decision to cancel the applicant's visa.