1718561 (Migration)

The Administrative Appeals Tribunal considered a decision to cancel the Subclass 573 Higher Education Sector visa of an applicant. The dispute arose from the applicant's alleged failure to comply with condition 8202 of the Migration Regulations 1994, which requires a student visa holder to be enrolled in a registered course and maintain satisfactory course progress and attendance. The applicant's visa was cancelled on the basis that she was not enrolled in a registered course of study from September 2016.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of her visa. If a breach was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa under section 116(1) of the Migration Act 1958. The Tribunal was required to assess the evidence presented by both the applicant and the Department regarding her enrolment status and any mitigating circumstances.

The Tribunal found that, on the evidence, the applicant had not complied with condition 8202(2) as she was not enrolled in a registered course of study from September 2016. However, in considering the exercise of its discretion to cancel the visa, the Tribunal had regard to the applicant's substantial submission in response to the Notice of Intention to Consider Cancellation. This submission detailed medical issues, including severe allergies, depression, gastroenteritis, flu, an ankle sprain, and a fractured ankle, which impacted her ability to study. The Tribunal also considered psychologist reports indicating severe anxiety, which later resolved. While noting an inconsistency in the applicant's evidence regarding travel dates, the Tribunal accepted her explanation for this discrepancy. Weighing these factors, and acknowledging the applicant's concerns about returning to China, the Tribunal concluded that the cancellation of the visa was not warranted.

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