Wickramanayake (Migration)

The Administrative Appeals Tribunal considered the case of Wickramanayake, who held a Student (Temporary) (Class TU) visa, Subclass 573. The dispute arose from the cancellation of this visa by the Department of Home Affairs. The applicant sought review of this decision, arguing that the cancellation was not warranted.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of the Migration Regulations 1994, which requires a student visa holder to be enrolled in a registered course and to maintain 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, taking into account the applicant's circumstances.

The Tribunal found that the applicant had not complied with condition 8202(2) as he was not enrolled in a registered course for a significant period, specifically between May 2017 and July 2018. This non-compliance rendered the visa liable for cancellation under section 116(1)(b) of the Migration Act 1958. In considering the exercise of discretion, the Tribunal acknowledged the applicant's stated reasons for his non-enrolment, including the death of his father and a subsequent father figure, mental health struggles, association with negative influences, and financial difficulties leading to unpaid tuition fees. However, despite these mitigating factors, the Tribunal concluded that the applicant had been in Australia for over four and a half years with only one completed qualification and had failed to provide adequate documentation to support his claims.

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