Devendra (Migration)

The Administrative Appeals Tribunal considered the cancellation of the applicant's Subclass 573 Higher Education Sector visa. The dispute arose because the applicant's course enrolment had ceased, leading to concerns about compliance with visa conditions and the potential for visa cancellation under section 116(1) of the Migration Act 1958.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of Schedule 8 to the Migration Regulations 1994, which mandates enrolment in a registered course and satisfactory course progress and attendance. If a breach was found, the Tribunal then had to determine whether to exercise its discretion to cancel the visa, considering the applicant's circumstances and relevant government policy.

The Tribunal found that the applicant had indeed breached condition 8202(2) as her enrolment in a registered course had ceased on 29 March 2016 and she had not enrolled in another registered course thereafter. However, the Tribunal then considered its discretion to cancel the visa. It had regard to the applicant's stated purpose for travelling to and remaining in Australia, which was to study early childhood education, and her evidence of completing various qualifications in this field. The Tribunal also considered the applicant's response to the notice of intention to cancel, her evidence, and that of her partner.

Ultimately, the Tribunal concluded that, considering all the circumstances, the visa should not be cancelled. It set aside the decision under review and substituted a decision not to cancel the applicant's visa.