CHU (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 573 Higher Education Sector visa of an applicant. The applicant, a 24-year-old from Thailand, had arrived in Australia in March 2014 with the intention of pursuing a series of qualifications culminating in a Bachelor of Business and Commerce. The cancellation was based on the applicant's alleged breach of condition 8202 of the Migration Regulations 1994, specifically the requirement to be enrolled in a registered course.

The Tribunal was required to determine whether the applicant had indeed breached condition 8202(2) by not being enrolled in a registered course during the relevant period. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the applicant's visa, taking into account all the circumstances of the case. The applicant did not dispute that she was not enrolled in a registered course between 16 February 2017 and the date of the delegate's decision.

The Tribunal found that the applicant had not complied with condition 8202(2). However, in considering the exercise of discretion, the Tribunal had regard to the applicant's personal circumstances. These included challenges with English as a second language, a lack of social support in Australia, a period of lost confidence in her studies, and significant family health issues in her home country, including her brother being shot and her father experiencing health problems. The Tribunal also noted that the applicant had not been notified of her enrolment cancellation by her education provider and had subsequently enrolled with a different provider and continued her studies. Weighing these factors, 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 visa.