TSHERING (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Subclass 573 Higher Education Sector student visa granted to the applicant, Mr. Tshering. The dispute arose when the applicant ceased to be enrolled in a registered course of study, leading to the Minister's consideration of visa cancellation under section 116(1)(b) of the Migration Act 1958 (Cth). The applicant had departed Australia, and his agent had reportedly withdrawn a review application.

The Tribunal was required to determine whether the ground for cancellation existed and, if so, whether to exercise its discretion to cancel the visa. Specifically, the Tribunal had to assess if the applicant had breached condition 8202(2)(a) of his visa, which mandates enrolment in a registered course. The Tribunal also had to consider the applicant's response to the Notice of Intention to Consider Cancellation (NOICC) and weigh the circumstances of the breach against government policy guidelines.

The Tribunal found that the applicant had breached condition 8202(2)(a) by not being enrolled in a registered course from 4 November 2015 to 2 October 2016, and again from 6 October 2016. While the applicant provided reasons for his non-enrolment, including the loss of enrolment fees, the Tribunal considered the prolonged period of non-compliance, spanning over ten months, to be a significant breach. The Tribunal concluded that the applicant was not fulfilling the purpose of his student visa and, after considering all relevant circumstances, affirmed the decision to cancel the visa.