Li (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Student (Temporary) (Class TU) visa, Subclass 573 (Higher Education Sector), held by the applicant. The dispute arose from the delegate's decision to cancel the applicant's visa on the grounds that she was not enrolled in a registered course between 11 January 2017 and 31 August 2017, which constituted a breach of condition 8202 of the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of her visa, specifically subclause (2)(a) which requires the holder to be enrolled in a registered course. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, taking into account all relevant circumstances.

The Tribunal found that the applicant had indeed failed to comply with condition 8202(2) as she admitted to not being enrolled in a registered course between 11 January 2017 and approximately 27 or 28 August 2017. However, in considering the exercise of discretion, the Tribunal had regard to a significant amount of documentary evidence presented by the applicant, including correspondence with various universities and medical certificates, as well as evidence from the Department's file, which included travel itineraries and previous medical advice. The Tribunal concluded that, on balance, the relevant factors weighed in favour of the applicant, and therefore, 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 it.