Le (Migration)

This matter concerned an application by Le (Migration) to review a decision to cancel her Subclass 573 Higher Education Sector visa. The applicant, who held a student visa, was prevented from enrolling in a Diploma of Accounting due to an administrative error, despite her intention to complete a Bachelor of Accounting. The Administrative Appeals Tribunal considered the circumstances of the case.

The primary legal issue before the Tribunal was whether the applicant’s breach of her visa enrolment conditions was a result of circumstances beyond her control, which would preclude the cancellation of her visa under the Migration Regulations 1994. Specifically, the Tribunal had to determine if the administrative error preventing her enrolment constituted a sufficient reason to set aside the cancellation decision.

The Tribunal reasoned that the applicant’s failure to meet the enrolment conditions was not due to her own actions or omissions but rather an administrative oversight by the education provider. Applying the principle that visa cancellation should not occur when the breach is beyond the applicant's control, the Tribunal found that the circumstances warranted a different outcome. The Tribunal concluded that the breach was indeed beyond the applicant's control.

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