Sushant (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Student (Temporary) (Class TU) visa, Subclass 573 (Higher Education Sector). The applicant had been granted the visa on 24 July 2014, valid until 30 March 2017. The visa was cancelled under s 116(1) of the Migration Act 1958 (Cth) on the grounds that the applicant had breached condition 8202 of Schedule 8 to the Migration Regulations 1994 by not being enrolled in a registered course.

The primary legal issue before the Tribunal was whether the applicant had complied with condition 8202 of the Migration Regulations 1994, and if not, 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 applicant conceded that he had not been enrolled in a registered course for a period of at least 12 months, from 15 October 2015 until the visa cancellation decision on 8 November 2016, following the cancellation of his MBA enrolment.

The Tribunal found that the applicant had failed to comply with condition 8202(2) of the Regulations. In considering the exercise of discretion to cancel the visa, the Tribunal had regard to the applicant's original intention to study in Australia, which was accepted. However, the Tribunal was not satisfied that the applicant had a compelling need to remain in Australia. While the applicant had not breached other visa conditions and had experienced personal and financial difficulties, the Tribunal concluded that these factors, when weighed against the breach of the enrolment condition, did not favour the applicant. On balance, the Tribunal was satisfied that the considerations weighed heavily against the applicant, and therefore affirmed the decision to cancel the visa.