Lo (Migration)

The Administrative Appeals Tribunal considered the cancellation of the applicant's Student (Temporary) (Class TU) visa, Subclass 573 (Higher Education Sector). The dispute arose because the applicant was not enrolled in a registered course, which constituted a breach of visa condition 8202. The Tribunal was required to determine whether the applicant had breached this condition and, if so, whether there were compelling circumstances that warranted setting aside the cancellation decision.

The Tribunal found that the applicant had indeed breached condition 8202 of her visa, as she had withdrawn from her registered course and had not been enrolled since May 2016. This failure to be enrolled in a registered course meant she was not fulfilling the purpose for which her visa was granted. However, the Tribunal then considered its discretion to cancel the visa. It had regard to the applicant's personal circumstances, including her pregnancy, the birth of her first child who is an Australian citizen by descent, and her marriage to an Australian citizen who works as a fly-in/fly-out worker.

Weighing the seriousness of the visa condition breach against the compelling personal circumstances, the Tribunal concluded that the applicant's visa should not be cancelled. The Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel it.