Touseef (Migration)

The Administrative Appeals Tribunal considered the cancellation of the applicant's Student (Temporary) (Class TU) visa, subclass 500. The dispute arose because the applicant was alleged to have breached condition 8202 of Schedule 8 to the Migration Regulations 1994 by failing to maintain enrolment in a registered course at the same or a higher AQF level than that for which the visa was granted. The Tribunal was required to determine whether the applicant had indeed breached condition 8202(2)(b) and, if so, whether the discretion to cancel the visa should be exercised.

The Tribunal found that the applicant had breached condition 8202(2)(b). The applicant's visa was granted in relation to a Bachelor of Information Technology course (AQF level 7). His enrolment in this course was cancelled on 6 July 2017, and he did not enrol in another Bachelor-level course until 30 October 2019. The applicant affirmed the correctness of this period of non-enrolment in a qualifying course. Consequently, the Tribunal concluded that the applicant had not complied with the requirement to maintain enrolment in a registered course at the same or a higher AQF level.

Having established a breach of a visa condition, the Tribunal then considered the discretion to cancel the visa. It had regard to the applicant's circumstances, including his stated intention to undertake a package of a diploma followed by a bachelor's degree, and the Department's Procedural Instruction on general visa cancellation powers. The Tribunal noted the applicant provided no evidence of a compelling need to remain in Australia or of significant hardship that would be caused by cancellation, beyond financial and emotional disappointment. While acknowledging that the circumstances of non-enrolment might have been beyond his control, the Tribunal weighed these factors against the clear breach of condition 8202(2)(b).

Ultimately, the Tribunal affirmed the delegate's decision to cancel the applicant's visa, concluding that, considering all circumstances, cancellation was the appropriate course of action.