Dheevan (Migration)

This matter concerned an appeal by the applicant, Dheevan, against the cancellation of his Subclass 572 (Vocational Education and Training Sector) student visa. The dispute arose because the applicant was not enrolled in a registered course, which constituted a failure to comply with condition 8202(2) of his visa. The Administrative Appeals Tribunal was tasked with determining whether to uphold the cancellation or exercise its discretion not to cancel the visa.

The primary legal issue before the Tribunal was whether the applicant had complied with the conditions of his student visa, specifically the requirement to be enrolled in a registered course. If non-compliance was established, the Tribunal then had to consider whether, in the exercise of its discretion, the visa should be cancelled, taking into account the applicant's circumstances and relevant government policy guidelines.

The Tribunal found that the applicant had indeed failed to comply with condition 8202(2) as he was not enrolled in a registered course. However, in considering the exercise of its discretion, the Tribunal had regard to the applicant's evidence. This included his explanation that he had advised the Department of his inability to commence studies as initially planned, his subsequent pursuit of a Certificate III in Fitness, and his belief that his enrolment had been updated. The Tribunal also considered correspondence from the applicant's education provider, Eagle Academy, which highlighted complications with his enrolment records, and evidence of his academic performance and positive engagement with his studies. Furthermore, the Tribunal noted the applicant's genuine intention to complete his studies and pursue a career in fitness in Malaysia, supported by evidence of his past employment in the field.

Ultimately, the Tribunal concluded that, when considering all the circumstances, the visa should not be cancelled. Accordingly, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant’s Subclass 572 visa.