1513093 (Migration)

The Administrative Appeals Tribunal considered a decision to cancel the visa of an applicant who held a Subclass 573 Higher Education Sector visa. The dispute arose because the applicant was found to have breached visa condition 8202(2)(a), which requires a visa holder to remain enrolled in a registered course. Information from the Provider Registration and International Student Management System (PRISMS) indicated the applicant's enrolment was cancelled on 12 August 2014, and she had not subsequently enrolled in another registered course.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was made out, and if so, whether to exercise its discretion to cancel the applicant's visa. The applicant had provided a detailed response to a Notice of Intention to Consider Cancellation, outlining health issues, family circumstances, confusion regarding enrolment procedures, and personal embarrassment that contributed to her failure to maintain enrolment.

The Tribunal found that the applicant had indeed breached condition 8202(2)(a) by ceasing to be enrolled in a registered course from 12 August 2014. However, as this ground did not mandate cancellation under section 116(3), the Tribunal proceeded to consider its discretionary power. After reviewing the applicant's explanations, including medical certificates, travel to India for treatment, difficulties with online enrolment, family bereavement, and her fear of humiliation, the Tribunal concluded that the circumstances as a whole warranted not cancelling the visa. The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's visa.