Gukwa (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Student (Temporary) (Class TU) visa, subclass 573 Higher Education Sector, held by the applicant, a Zimbabwean national. The visa was cancelled by a delegate of the Minister on the grounds that the applicant had failed to comply with condition 8202 of the Migration Regulations 1994, specifically by not being enrolled in a registered course of study.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of her visa. This condition requires the visa holder to be enrolled in a registered course, achieve satisfactory course progress, and maintain satisfactory course attendance. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, despite the breach.

The Tribunal found that the applicant had indeed breached condition 8202(2) as she was not enrolled in a registered course at the time of the delegate's decision. However, the Tribunal considered the circumstances surrounding the breach. The applicant had successfully completed earlier stages of her studies and was on a pathway to a Bachelor of Social Science. Her enrolment was cancelled due to non-payment of fees, which she attributed to her sister, her financial sponsor, experiencing difficulties, and her own inability to earn sufficient funds through work. The Tribunal accepted that these financial strains were beyond her control and that her prior academic success indicated a genuine intention to study. Weighing these factors, including the applicant's recognition of the breach and willingness to resolve it, the Tribunal concluded that the visa should not be cancelled.

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