Chemutai (Migration)

The Administrative Appeals Tribunal considered a decision to cancel the Student (Temporary) (Class TU) visa (Subclass 500) held by the applicant, a Kenyan national. The applicant's visa was cancelled by the Department of Home Affairs on the grounds that she had not maintained enrolment in a full-time registered course from 29 June 2018 until the cancellation date of 28 August 2019. The applicant had initially come to Australia to undertake a Bachelor of Media and Communications at La Trobe University.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of the Migration Regulations 1994, which requires a student visa holder to be enrolled in a full-time registered course and to maintain enrolment in a course that will provide a qualification at the same or higher level than the original course. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa.

The Tribunal found that the applicant had indeed not maintained enrolment in a registered course for the specified period, thus breaching condition 8202(2)(a). However, in considering the exercise of discretion, the Tribunal took into account the applicant's explanation for the gap in her studies, which included a falling out with her parents leading to the withdrawal of financial support and her subsequent depression. The Tribunal noted that the applicant had since enrolled in a Diploma of Aviation and had been actively studying since October 2019, demonstrating an intention to continue her studies in Australia.

Ultimately, the Tribunal concluded that the circumstances warranted setting aside the cancellation decision. The Tribunal substituted a decision not to cancel the applicant's Subclass 500 (Student) visa, finding that the gap in studies did not reveal an intention not to study but rather that she was prevented from doing so.