Cronje (Migration)

This case concerned a review of a decision to cancel the Subclass 500 (Student) visa held by the first-named applicant. The dispute arose because the applicant was not enrolled in a registered course of study for a period, which potentially constituted a breach of condition 8202 of the Migration Regulations 1994. The applicant contended that this non-enrolment was due to a series of circumstances, including incorrect migration advice and practical difficulties with course offerings, and that his visa should not be cancelled. The matter was before the Tribunal for review.

The primary legal issues before the Tribunal were whether the applicant had breached condition 8202 of the Migration Regulations 1994 by failing to maintain enrolment in a registered course, and if so, whether the discretion to cancel his visa should be exercised. Condition 8202 requires a student visa holder to be enrolled in a full-time registered course and to maintain enrolment in a course that leads to a qualification at the same or a higher level than the one for which the visa was granted.

The Tribunal found that the applicant had indeed breached condition 8202 by not being enrolled in a registered course between 25 July 2018 and 10 September 2018. However, in considering the exercise of discretion regarding cancellation, the Tribunal gave considerable weight to the fact that the breach was primarily caused by incorrect advice from the applicant's migration agent, and that the applicant had not acted wilfully or recklessly. The Tribunal also noted the applicant's stated purpose for coming to Australia, which was to further his education and employment prospects.

Having considered all the circumstances, the Tribunal concluded that the visa should not be cancelled. The decision under review was set aside, and a substituted decision was made not to cancel the applicant's Subclass 500 (Student) visa. The Tribunal noted it had no jurisdiction concerning the other applicants.