1616885 (Migration)

The applicant, a holder of a Subclass 573 Higher Education Sector visa, sought review of the decision to cancel that visa. The dispute centred on whether the applicant had breached condition 8202 of the Migration Regulations 1994 by failing to maintain enrolment in a registered course of study. The applicant contended that exceptional circumstances beyond his control, specifically a serious health condition requiring ongoing treatment and surgery, prevented him from complying with the enrolment requirement.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of his visa, which mandates enrolment in a registered course of study. If a breach was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, taking into account the applicant's submissions regarding his health and his pending protection visa application.

The Tribunal found that the applicant had indeed breached condition 8202(2) of the Regulations, as his enrolment with his education provider ceased on 4 August 2016, meaning he was not enrolled in a registered course for at least two months prior to the visa cancellation. While acknowledging the applicant's serious health issues and the pending protection visa application, the Tribunal concluded that these factors did not outweigh the breach of the visa condition. The Tribunal considered the applicant's ability to participate in the hearing, noting a psychologist's report but finding the applicant comprehended questions and provided relevant answers. Ultimately, the Tribunal affirmed the decision to cancel the applicant's visa.