1822275 (Migration)

This matter concerned an application to review the cancellation of the applicant's Student (Temporary) (Class TU) visa, Subclass 573 Higher Education. The applicant had failed to re-enrol in a registered course of study for approximately ten months, from September 2017 to July 2018, after failing subjects in her first year of a Bachelor of [Subject 2] degree. The visa was cancelled on the basis that the applicant had breached condition 8202 of the Migration Regulations 1994 by not being enrolled in a registered course.

The Tribunal was required to determine whether the applicant had complied with condition 8202 of the Migration Regulations 1994, which mandates enrolment in a registered course and satisfactory course progress and attendance. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the applicant's visa. The applicant contended that she had experienced emotional turmoil and a car accident, which contributed to her circumstances, and that she had taken steps to rectify her non-compliance immediately upon receiving notice of the potential cancellation.

The Tribunal found that the applicant had indeed failed to comply with condition 8202(2) by not being enrolled in a registered course for the specified period. However, in exercising its discretion regarding cancellation, the Tribunal had regard to the applicant's stated purpose of travel and stay in Australia, which was to complete a tertiary degree, and her subsequent attempts to re-enrol in a registered course. Crucially, the Tribunal noted that the applicant had rectified the circumstances of her non-compliance almost immediately after receiving the notice of intention to cancel her visa, and had provided evidence of new offers of enrolment. The Tribunal also considered the applicant's explanation for her difficulties, including her emotional state and a car accident, and found her to be a credible witness.

Ultimately, the Tribunal concluded that, considering all the circumstances, the visa should not be cancelled. The decision under review was set aside, and a substituted decision was made not to cancel the applicant's Subclass 573 Higher Education Sector visa.