1704042 (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 573 Higher Education Sector visa of an applicant. The applicant had arrived in Australia in September 2014 and initially undertook English language courses before enrolling in a commercial cookery course in July 2015. Finding this course too difficult, the applicant transferred to an accounting course at a different institution, which she did not complete, with her last enrolment ending on 22 December 2016. The visa was subsequently cancelled on the grounds that the applicant was not enrolled in a registered course of study, thereby breaching condition 8202 of the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of the Migration Regulations 1994, which requires a student visa holder to be enrolled in a registered course of study. 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 was satisfied, based on the evidence including enrolment confirmations and transcripts, that the applicant had not been enrolled in a registered course of study after 22 December 2016, and therefore had not complied with condition 8202(2).

In considering the exercise of its discretion to cancel the visa, the Tribunal gave significant weight to the applicant's stated reasons for wishing to remain in Australia, including her father's dying wish for her to obtain a certificate, her desire to assist her family in Vietnam, and her aspiration to establish a business. The Tribunal also noted the applicant's compliance with visa conditions from her arrival until December 2016. Despite the breach of condition 8202(2), the Tribunal concluded that the compelling circumstances presented by the applicant weighed heavily in favour of not cancelling her visa.

Consequently, the Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel her Subclass 573 visa.