1602862 (Migration)

This matter concerned an appeal before the Tribunal regarding the cancellation of the applicant's Subclass 572 Vocational Education and Training Sector visa. The dispute arose because the applicant had ceased to be enrolled in a registered course for a period between July 2015 and February 2016, thereby allegedly breaching condition 8202(2)(a) of his visa. The Minister had issued a Notice of Intention to Consider Cancellation based on this alleged non-compliance.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was established, and if so, whether to exercise its discretion to cancel the visa. Specifically, the Tribunal had to ascertain if the applicant had indeed breached condition 8202(2)(a) by not maintaining enrolment in a registered course, and then consider all relevant circumstances, including government policy and the applicant's submissions, in deciding whether to cancel the visa.

The Tribunal found that the applicant had breached condition 8202(2)(a) as he was not enrolled in a registered course from 11 July 2015 until 22 February 2016. However, the ground for cancellation under section 116(1)(b) did not mandate cancellation. In exercising its discretion, the Tribunal had regard to the applicant's explanation that his non-compliance was innocent and due to ignorance of the requirement to maintain continuous enrolment, his attempts to re-enrol and pay fees, and his stated intention to return to his family in Bhutan. The Tribunal also considered the similarity of the courses he had studied and his overall circumstances.

Ultimately, the Tribunal concluded that, considering all the circumstances, the visa should not be cancelled. The decision under review was set aside, and a substitute decision was made not to cancel the applicant's visa.