1621743 (Migration)

This matter concerned an appeal by a student visa holder against the cancellation of their Subclass 573 Higher Education Sector visa. The applicant had failed to maintain enrolment in a registered course, thereby breaching a condition of their visa. The dispute centred on whether the visa cancellation was appropriate given the circumstances surrounding the breach.

The primary legal issue before the Tribunal was whether the applicant had complied with condition 8202(2) of their visa, which requires the holder to be 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, taking into account all relevant circumstances.

The Tribunal found that the applicant had not been enrolled in a registered course, thus establishing a breach of condition 8202(2). However, in exercising its discretion regarding cancellation, the Tribunal placed considerable weight on evidence demonstrating that the breach occurred due to circumstances beyond the applicant's control. Specifically, the applicant had suffered from depression and anxiety following the death of their grandfather, which significantly impacted their ability to concentrate and manage their studies. Medical documentation supported these mental health conditions and the applicant's engagement with treatment. The Tribunal was satisfied that the applicant was a genuine student with the capacity to uphold visa conditions, particularly given ongoing mental health treatment and financial capacity.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.