Chepkarat (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the visa of the applicant, who held a Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector visa. The dispute arose from the applicant's failure to maintain enrolment in a registered course, which constituted a breach of condition 8202 of the Migration Regulations 1994. The applicant had been issued a Notice of Intention to Consider Cancellation (NOICC) and had responded with explanations regarding financial hardship, a desire to remain in Australia, and attempts to re-enrol.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of her visa, and if so, whether the discretion to cancel her visa should be exercised. Condition 8202 requires a visa holder to be enrolled in a registered course. The Tribunal also considered the applicant's submissions regarding her circumstances, including financial difficulties stemming from political instability in Kenya, her desire to complete her nursing studies, and her previous compliance with visa conditions.

The Tribunal found that the applicant had indeed not complied with condition 8202(2) as she was not enrolled in a registered course for a period of eight months. However, the Tribunal then considered its discretion to cancel the visa. It had regard to the applicant's compelling reasons for wishing to remain in Australia, her previous academic progress, her expressed remorse, and the potential hardship cancellation would cause. The Tribunal noted her previous successful completion of a diploma and the first semester of her degree, and accepted that she presented as a committed student.

Ultimately, the Tribunal concluded that, considering all the circumstances, the decision to cancel the applicant's visa should be set aside. The Tribunal substituted a decision not to cancel the visa, allowing the applicant to continue her studies.