An (Migration)

The Administrative Appeals Tribunal considered the decision to cancel the visa of an applicant holding a Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa. The applicant's visa had been cancelled on the grounds that he had not been enrolled in a registered course of study since May 2016, thereby breaching condition 8202(2) of the Migration Regulations 1994. The applicant had been notified of the intention to cancel his visa and was granted an extension to respond, but failed to do so, claiming he was unaware of the extension.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of the Migration Regulations 1994, and if so, whether the discretion to cancel his visa should be exercised. Condition 8202 requires a student visa holder to be enrolled in a registered course and to maintain satisfactory course progress and attendance. The applicant conceded that he had failed to maintain enrolment in a registered course for approximately seven months, thus admitting a breach of condition 8202(2).

Despite the admitted breach, the Tribunal considered the applicant's circumstances in exercising its discretion regarding visa cancellation. The applicant provided reasons for his non-compliance, including the devastating impact of his parents' divorce in 2015, which affected his financial support for studies, and evidence of emotional immaturity at the time. He had completed high school in Australia and had been accepted into tertiary studies. The Tribunal also noted a psychological report and a renewed offer of enrolment from another institution, indicating a commitment to resuming his studies.

Having regard to the applicant's personal circumstances, his renewed focus on his studies, and the evidence presented, the Tribunal concluded that the visa should not be cancelled. The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 573 visa.