Galagama Pathiranage (Migration)

The applicant, a Sri Lankan national, sought review of a decision to cancel his Student (Temporary) (Class TU) visa, Subclass 573 (Higher Education Sector). The cancellation was based on the applicant's failure to be enrolled in a registered course, thereby breaching condition 8202 of the Migration Regulations 1994. The applicant had successfully completed a Diploma of Engineering but struggled with his subsequent Bachelor of Engineering degree, a period coinciding with his grandfather's illness and death, which caused him significant distress.

The primary legal issue before the Tribunal was whether the applicant had complied with condition 8202 of the Migration Regulations 1994, specifically subclause (2) which requires a visa holder to be enrolled in a registered course. The Tribunal was also required to consider whether, having found a breach of condition 8202(2), it should exercise its discretion to cancel the applicant's visa.

The Tribunal found that the applicant had indeed breached condition 8202(2) as he had not been enrolled in a registered course since May 2017. However, in considering the exercise of discretion to cancel the visa, the Tribunal had regard to the applicant's stated intention to complete his engineering studies, which was a significant motivation for his travel to Australia, and the emotional distress he experienced following his grandfather's death. Despite the applicant's non-compliance and lack of current enrolment, the Tribunal concluded that the circumstances warranted setting aside the cancellation decision.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 573 Higher Education Sector visa.