DING (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Subclass 573 Higher Education Sector visa was cancelled. The dispute centred on whether the applicant had breached condition 8202 of the Migration Regulations 1994, which requires a student visa holder to be enrolled in a registered course and to maintain satisfactory course progress and attendance. The Minister's delegate had cancelled the visa on the basis that the applicant was not enrolled in a registered course since 30 June 2016.

The Tribunal was required to determine if the applicant had complied with condition 8202 of the Migration Regulations 1994. Specifically, the Tribunal had to ascertain whether the applicant was enrolled in a registered course, had achieved satisfactory course progress, and had maintained satisfactory course attendance. If a breach of condition 8202 was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, having regard to the applicant's explanations and relevant government policy guidelines.

The Tribunal found that the applicant had indeed not complied with condition 8202(2) as they were not enrolled in a registered course at the time of the cancellation decision. However, the Tribunal exercised its discretion not to cancel the visa. This decision was based on the applicant's explanation for the enrolment delay, which stemmed from an initial delay in completing an English language course, subsequently impacting the commencement of their Bachelor's degree. This, in turn, prevented them from enrolling in a Master's course as planned. The Tribunal accepted the applicant's evidence regarding their reliance on an education agent who failed to secure a place in a Master's program, leading to the missed enrolment period for the second semester of 2016. The Tribunal noted that, unlike many cases of this nature, the applicant had completed their Bachelor's degree and intended to pursue further studies to assist in their family's business.

Consequently, the Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel it.