1921486 (Migration)

This matter concerned an application for review of a decision by a delegate of the Minister for Home Affairs to cancel the applicant's Subclass 500 (Student) visa under section 116(1)(b) of the *Migration Act 1958* (Cth). The applicant, a holder of a Subclass 573 Higher Education Sector visa, had ceased enrolment in a registered course, leading to the cancellation. The applicant sought to have this decision set aside.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of Schedule 8 to the *Migration Regulations 1994* (Cth), which requires a student visa holder to be enrolled in a registered course and to maintain satisfactory academic progress and attendance. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, having regard to the applicant's submissions and relevant government policy guidelines.

The Tribunal found that the applicant had not complied with condition 8202(2) as they were not enrolled in a registered course since 14 March 2018. However, after considering the applicant's detailed statutory declaration outlining multiple health conditions, significant family issues, and personal relationship difficulties, the Tribunal exercised its discretion not to cancel the visa. The Tribunal concluded that these extenuating circumstances, which impacted the applicant's ability to study and maintain enrolment, warranted setting aside the cancellation decision.

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