HABIB (Migration)

This matter concerned an appeal to the Tribunal regarding the cancellation of the applicant's Student (Temporary) (Class TU) visa, Subclass 573 Higher Education Sector. The applicant, who was undertaking a Masters of Business Administration, had her visa cancelled on the grounds that she was not enrolled in a registered course. The Tribunal was required to determine whether the applicant had breached condition 8202 of the Migration Regulations 1994 and, if so, whether the discretion to cancel her visa should be exercised.

The Tribunal found that the applicant had indeed not complied with condition 8202(2) of the Migration Regulations 1994, as she was not enrolled in a registered course of study for a significant period. However, the Tribunal then considered the exercise of discretion regarding the cancellation of the visa. The applicant's non-compliance stemmed from a series of events including childbirth, subsequent medical complications, and administrative errors by her education provider, Group Colleges Australia. Despite these challenges, the applicant had a sound academic record prior to her studies in Australia and had demonstrated a genuine intention to study, having commenced her MBA full-time after the cancellation decision and progressing significantly in her course.

The Tribunal concluded that, in light of the circumstances, including the applicant's personal situation and the administrative issues with her education provider, the visa should not be cancelled. The decision under review was set aside, and a decision was substituted to not cancel the applicant's visa.