Gwavava (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Subclass 573 Higher Education Sector visa was cancelled. The dispute arose because the applicant was not enrolled in a registered course of study, which constituted a breach of condition 8202 of the Migration Regulations 1994. The applicant contended that the circumstances leading to this breach, including significant financial and emotional hardship, mental health issues, and drug-induced psychosis, were beyond their control.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of their visa, and if so, whether the discretion to cancel the visa should be exercised. Condition 8202 requires a student visa holder to be enrolled in a registered course and to maintain satisfactory course progress and attendance. The Tribunal was required to determine if the applicant's failure to be enrolled in a registered course since May 2016 constituted a breach, and then to consider the applicant's personal circumstances in deciding whether to uphold the cancellation.

The Tribunal found that the applicant had indeed breached condition 8202(2) by not being enrolled in a registered course. However, in exercising its discretion regarding cancellation, the Tribunal had regard to the applicant's evidence of significant personal difficulties. These included psychological issues, drug use leading to hospitalisation, and financial struggles necessitating long hours of work. While acknowledging the seriousness of the breach, the Tribunal concluded that, on balance, the visa should not be cancelled, setting aside the original decision.