Luo (Migration)

This matter concerned an appeal by the applicant, a student visa holder, against the cancellation of their Subclass 573 Higher Education Sector visa. The applicant's enrolment with the University of New South Wales was cancelled due to unsatisfactory course progress. The Department subsequently issued a Notice of Intention to Consider Cancellation and ultimately cancelled the applicant's visa. The decision was reviewed by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of the Migration Regulations 1994, which requires a student visa holder to maintain satisfactory course progress and enrolment. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to set aside the cancellation decision, having regard to various factors including the purpose of the applicant's stay, the extent of compliance with visa conditions, the hardship that may be caused by cancellation, and the circumstances in which the ground for cancellation arose.

The Tribunal found that while the applicant had technically breached condition 8202(2) due to the certification of unsatisfactory course progress by their education provider, this breach was not determinative. The applicant had been under the mistaken belief that their enrolment was suspended, not cancelled, due to confusing correspondence from the university. The Tribunal accepted that this misunderstanding constituted a compelling reason for the breach. Furthermore, the Tribunal considered that the applicant's primary purpose in Australia was to study, that their academic progress had since become satisfactory upon re-enrolment, and that cancellation would cause significant emotional and psychological hardship.

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