DROGUETT FREDES (Migration)

This matter concerned an appeal by Mr. Droguett Fredes against a decision to cancel his Subclass 572 (Vocational Education and Training Sector) student visa. The dispute arose from an alleged gap in his registered course enrolment, which the Department of Home Affairs considered a ground for cancellation. The Administrative Appeals Tribunal (AAT) was tasked with determining whether the ground for cancellation existed and, if so, whether the discretion to cancel the visa should be exercised.

The Tribunal was required to consider two primary legal issues. Firstly, whether the applicant's circumstances constituted a ground for visa cancellation under the Migration Regulations 1994, specifically concerning the requirement to be enrolled in a registered course. Secondly, if a ground for cancellation was established, the Tribunal had to determine whether it was appropriate to exercise the discretion to cancel the visa, taking into account all relevant factors.

In its reasoning, the Tribunal accepted that an administrative error by the applicant's educational institution had led to a delay in the registration of his enrolment in a Certificate IV in Commercial Cookery. This error, which was retrospectively corrected, meant that while the applicant had genuinely been studying, his enrolment was not immediately reflected in the Provider Registration and International Student Management System (PRISMS). The Tribunal gave considerable weight to the short duration of the actual non-enrolment, the mistaken nature of the issue, the subsequent correction, and the applicant's continued study in Australia consistent with the purpose of his visa. On balance, the Tribunal concluded that the discretion to cancel the visa should not be exercised.

Consequently, the Tribunal set aside the Department's decision to cancel Mr. Droguett Fredes' visa and substituted a decision not to cancel it.