Cheema (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 dispute centred on whether the applicant had breached condition 8202 of the Migration Regulations 1994, which requires a student visa holder to be enrolled in a registered course and maintain satisfactory course progress and attendance. The applicant's visa was cancelled on the grounds that she was not enrolled in a registered course for a substantial period, from June 2015 until the cancellation decision in August 2016, and that there were recorded instances of non-payment of tuition fees.

The primary legal issue before the Tribunal was to determine if the applicant had complied with condition 8202 of her visa. This condition mandates enrolment in a registered course and satisfactory academic progress and attendance, as certified by the education provider. 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. The Tribunal noted that the applicant did not dispute the factual basis of her non-enrolment for over twelve months.

Despite finding that the applicant had not complied with condition 8202(2) by not being enrolled in a registered course for an extended period, the Tribunal exercised its discretion not to cancel the visa. The Tribunal considered the applicant's explanations for her non-enrolment, including receiving mixed messages from her education provider, her genuine efforts to re-enrol, and her career aspirations in India. The Tribunal found her explanations credible and plausible, noting her attempts to reinstate enrolment and re-enrol between the cancellation of her initial enrolment and the visa cancellation decision. The Tribunal also acknowledged the unprofessional behaviour of the applicant's representative, which had impacted the timely submission of evidence.

Consequently, the Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel it. The Tribunal cautioned that this decision was reached only marginally in the applicant's favour.