1512236 (Migration)

The Administrative Appeals Tribunal considered whether to affirm the decision to cancel the applicant's student visa. The dispute arose because the applicant, a holder of a Subclass 573 Higher Education Sector student visa, was alleged to have breached condition 8202 of the Migration Regulations 1994 by not being enrolled in a registered course. The applicant contended that his enrolment was cancelled due to unpaid fees, and he subsequently experienced confusion and depression, hindering his ability to secure new enrolment.

The Tribunal was required to determine if the applicant had complied with condition 8202 of the Migration Regulations 1994, specifically whether he was enrolled in a registered course. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, having regard to the applicant's submissions and relevant government policy guidelines. The core legal issue was whether the applicant's failure to maintain enrolment in a registered course constituted a breach of his visa conditions, and if so, whether the circumstances warranted the cancellation of his visa.

The Tribunal found that the applicant had breached condition 8202(2) of the Regulations, as PRISMS records indicated he was not enrolled in a registered course from 12 January 2015 until at least 3 September 2015, a period exceeding eight months. While acknowledging the applicant's stated intention to study in Australia and his prior enrolment in English studies and postgraduate subjects, the Tribunal considered the prolonged period of non-enrolment to be a significant factor favouring cancellation. Despite the applicant's claims of difficulties with his studies and financial issues leading to his enrolment cancellation, the Tribunal found no evidence of extenuating circumstances beyond his control that would outweigh the breach. The Tribunal affirmed the decision to cancel the applicant's visa.