1511865 (Migration)

The Administrative Appeals Tribunal considered whether to affirm the decision to cancel the applicant's Subclass 573 Higher Education Sector visa. The dispute arose because the applicant, a student visa holder, was alleged to have breached condition 8202 of the Migration Regulations 1994. The primary ground for cancellation was the applicant's failure to remain enrolled in a registered course.

The Tribunal was required to determine if the applicant had complied with condition 8202 of the Migration Regulations 1994, specifically subclause (2) which mandates enrolment in a registered course for holders of this visa subclass. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, taking into account various factors including government policy guidelines and any extenuating circumstances presented by the applicant.

The Tribunal found that the applicant had not complied with condition 8202(2) as evidence from the Provider Registration and International Student Management System (PRISMS) indicated the applicant ceased enrolment in a registered course on 5 December 2014 and remained unenrolled thereafter. The applicant acknowledged this fact during the hearing. In considering the exercise of discretion, the Tribunal noted the applicant's explanation for the breach, which included not receiving a Notice of Intention to Cancel (NOICC) due to a change of address and being busy with work and personal commitments. However, the Tribunal found these reasons did not constitute extenuating circumstances beyond the applicant's control, particularly given the extensive period of non-enrolment. The Tribunal concluded that the visa cancellation should be affirmed.