1516148 (Migration)

This matter concerned a review by the Administrative Appeals Tribunal of a decision to cancel the applicant's Subclass 573 Higher Education Sector visa. The applicant's visa was cancelled on the basis that they had breached condition 8202 of the Migration Regulations 1994, specifically by not being enrolled in a registered course. The Tribunal was required to determine whether the applicant had indeed breached this condition.

The central legal issue was whether the applicant had complied with condition 8202 of the Migration Regulations 1994. This condition, as relevant to the applicant's visa subclass, required the holder to be enrolled in a registered course and to achieve satisfactory course progress and attendance, as certified by their education provider. The cancellation decision was based on departmental records indicating the applicant had not been enrolled in a registered course since 24 September 2014.

The Tribunal found that the cancellation ground was not made out. It relied on a file note from the Department of Immigration and Border Protection, dated 13 March 2016, which indicated that the Department had received a letter from the applicant's university stating that an error had been made in reporting the applicant as having ceased study. This led the Department to waive a three-year exclusion period, recognising the applicant as a genuine student with no evidence of immigration law abuse. Based on this information, the Tribunal concluded that the departmental system's indication of the applicant ceasing enrolment was inaccurate. Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's visa.