Andika (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Student (Temporary) (Class TU) visa, Subclass 573 (Higher Education Sector), was cancelled. The cancellation was based on the applicant's failure to maintain enrolment in a registered course, which constituted a breach of condition 8202 of the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202(2) of the visa, which requires the holder to be enrolled in a registered course. If a breach was found, the Tribunal then had to consider whether to exercise its discretion under section 116(1) of the Migration Act 1958 to cancel the visa, taking into account various factors.

The Tribunal found that the applicant had indeed breached condition 8202(2) by not being enrolled in a registered course for a significant period. However, in exercising its discretion, the Tribunal weighed this breach against other factors. These included the applicant's stated intention to complete a hospitality degree, his compliance with other visa conditions, and importantly, his mental health issues and treatment, which were presented as mitigating circumstances. The Tribunal concluded that, considering all the circumstances, the visa should not be cancelled. The decision under review was set aside, and a new decision was substituted to not cancel the applicant's visa.