Elias (Migration)

This matter concerned an application by Elias (the applicant) to review the decision to cancel his Student (Temporary) (Class TU) visa, Subclass 573 Higher Education Sector. The applicant's visa was cancelled on the basis that he had ceased enrolment in a registered course, thereby breaching condition 8202(2)(a) of the Migration Regulations 1994. The applicant contended that his failure to maintain enrolment was due to significant medical issues and a refused deferral request.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202(2)(a) of his visa, 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 registered course and to achieve satisfactory course progress and attendance, as certified by their education provider. The Tribunal was required to determine if the applicant's non-enrolment constituted a breach and, if so, to consider the applicant's circumstances in deciding whether to uphold the cancellation.

The Tribunal found that the applicant had indeed failed to maintain enrolment in a registered course from 21 June 2019, thus breaching condition 8202(2)(a). However, in considering the exercise of discretion to cancel the visa, the Tribunal had regard to the applicant's detailed explanation for his non-enrolment. This included evidence of significant medical issues, such as severe clinical depression, anxiety, panic attacks, and chronic migraines, for which he received extensive medical treatment between 2015 and 2019. The Tribunal also noted that the applicant's request for a deferral from his studies on medical grounds had been refused by his education provider.

Considering the totality of the circumstances, including the applicant's medical history and the refusal of his deferral request, the Tribunal concluded that 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 573 visa.