Thamarath (Migration)

This matter concerned an appeal to the Administrative Appeals Tribunal regarding the cancellation of the applicant's Student (Temporary) (Class TU) visa, subclass 500. The cancellation was based on the ground that the applicant had failed to maintain enrolment in a registered course, thereby breaching a condition of his visa. The Tribunal was required to consider whether the ground for cancellation existed and, if so, whether to exercise its discretion to affirm the cancellation decision.

The primary legal issue before the Tribunal was whether the applicant had complied with condition 8202 of his visa, which mandates enrolment in a registered course. The Tribunal also had to determine whether, in light of the circumstances, the discretion to cancel the visa should be exercised. This involved considering factors such as the applicant's purpose for being in Australia, the extent of his compliance with visa conditions, the mandatory legal consequences of cancellation, and any relevant international obligations.

The Tribunal found that the ground for cancellation was established, as the applicant had not been enrolled in a registered course since his enrolment was cancelled on 23 May 2017 due to his father's financial difficulties. While acknowledging these difficulties were outside the applicant's reasonable control, the Tribunal noted that the applicant had not taken sufficient positive steps to rectify the situation or make alternative plans. The Tribunal determined that the applicant's desire to complete his MBA did not constitute a compelling need to remain in Australia, and that his prolonged period of non-enrolment, coupled with the mandatory legal consequences of cancellation, supported affirming the decision.

The Tribunal affirmed the decision to cancel the applicant's visa.