Adikari Mudiyanselage (Migration)

The applicant, Adikari Mudiyanselage, sought review of a decision to cancel her Student (Temporary) (Class TU) visa, Subclass 573 Higher Education Sector. The dispute centred on whether the applicant had breached condition 8202 of the Migration Regulations 1994, which requires a visa holder to be enrolled in a registered course and maintain satisfactory course progress and attendance. The Tribunal was tasked with determining if the applicant had indeed breached this condition and, if so, whether the discretion to cancel her visa should be exercised.

The primary legal issue was whether the applicant had complied with condition 8202 of Schedule 8 to the Migration Regulations 1994. This condition mandates enrolment in a registered course and satisfactory course progress and attendance. The applicant's visa was cancelled on the basis that she was not enrolled in a registered course. The Tribunal considered the applicant's evidence regarding her enrolment in a Bachelor of Nursing degree, the circumstances leading to the cancellation of her enrolment due to her parents' financial hardship and serious family health issues in Sri Lanka, and her subsequent attempts to re-enrol.

The Tribunal found that the applicant had not been enrolled in a registered course between 22 March 2017 and 8 February 2018, thus breaching condition 8202(2). However, in exercising its discretion to cancel the visa, the Tribunal had regard to the applicant's compelling circumstances, including her successful completion of a Diploma of Nursing, her registration as an enrolled nurse in Australia, and her stated intention to continue her studies in Australia and later contribute to medical programs in Sri Lanka. The Tribunal accepted that the breach was not her fault and occurred due to matters beyond her control. Consequently, the Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel it.