Le (Migration)

This matter concerned an appeal by an applicant against the cancellation of their Student (Temporary) (Class TU) visa, Subclass 573 (Higher Education Sector). The applicant's visa had been cancelled on the grounds that they were not enrolled in a registered course, which constituted a breach of condition 8202 of the Migration Regulations 1994. The case was heard by Joseph Lindsay.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of the Migration Regulations 1994 by failing to be enrolled in a registered course. If a breach was established, the Tribunal was then required to consider whether to exercise its discretion to cancel the applicant's visa, having regard to the circumstances that led to the non-compliance.

The Tribunal found that the applicant had indeed failed to comply with condition 8202(2)(a) of the Regulations, as they had not been enrolled in a registered course of study since 14 November 2016. Despite this established ground for cancellation, the Tribunal exercised its discretion not to cancel the visa. This decision was based on a consideration of the applicant's personal circumstances, including the illness and death of his grandfather, the death of his girlfriend, and the personal stress arising from his latent homosexuality and concerns about his parents' reaction. The Tribunal concluded that the applicant should be given a final opportunity to demonstrate his commitment to completing his studies.

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