Abbas (Migration)

This matter concerned a review by the Administrative Appeals Tribunal of the cancellation of the applicant's Student (Temporary) (Class TU) visa, Subclass 573 (Higher Education Sector). The visa was cancelled on the grounds that the applicant had breached condition 8202 of Schedule 8 to the Migration Regulations 1994, specifically by not being enrolled in a registered course of study since 7 March 2016.

The Tribunal was required to determine whether the applicant had indeed breached condition 8202, and if so, whether the visa should be cancelled. Condition 8202 mandates that a student visa holder must be enrolled in a registered course, achieve satisfactory course progress, and maintain satisfactory course attendance. The applicant conceded non-enrolment, thus establishing a breach of condition 8202(2). The central issue then became the exercise of the Tribunal's discretion regarding cancellation.

In its reasoning, the Tribunal acknowledged the applicant's admission of non-enrolment, which it considered a significant breach as it undermined the purpose of the student visa. However, the Tribunal also took into account detailed evidence of the applicant's psychological and financial difficulties, which contributed to his non-compliance. The Tribunal accepted that the applicant had suffered from depression, anxiety, and stress due to family health issues and financial hardship. Furthermore, the Tribunal noted that the applicant had been studying successfully since January 2018, completing five out of eight subjects in his Bachelor of Accounting course, and expressed a strong desire to continue his studies. Weighing these factors, particularly the applicant's medical condition and his efforts to resume his studies, the Tribunal concluded that the visa should not be cancelled.

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