1721496 (Migration)

The Administrative Appeals Tribunal considered a decision to cancel the Subclass 573 (Higher Education Sector) visa of the applicant. The dispute centred on 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. The applicant's visa was cancelled on the basis that they were not enrolled in a registered course during a specific period.

The Tribunal was required to determine if the applicant had complied with condition 8202(2) of the Migration Regulations 1994, specifically whether they were 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, having regard to the circumstances presented by the applicant and relevant government policy.

The Tribunal found that the applicant had technically breached condition 8202(2) as they were not enrolled in a registered course between September 2016 and February 2017, despite having an approved deferral for medical reasons. However, the Tribunal exercised its discretion not to cancel the visa. This decision was based on significant weight given to evidence demonstrating the applicant had an approved leave of absence, had resumed studies, and was a genuine student. Crucially, the Tribunal found that the applicant did not receive the Notice of Intention to Cancel (NOICC) due to an email transcription error, preventing them from responding. The Tribunal concluded that the factors favouring the visa not being cancelled far outweighed any against, and therefore set aside the cancellation decision.