Lusengo (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 573 Higher Education Sector visa of the applicant, Mr. Lusengo. The dispute arose because the applicant was not enrolled in a registered course of study, which constituted a breach of condition 8202 of the Migration Regulations 1994. The Department of Home Affairs had issued a Notice of Intention to Cancel the visa on 11 November 2016, citing the applicant's failure to maintain enrolment since December 2015.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of the Migration Regulations 1994, specifically subclause (2) requiring enrolment in a registered course. If a breach was found, the Tribunal then had to consider whether to exercise its discretion under section 116(1) of the Migration Act 1958 to cancel the visa. The Tribunal was also required to consider relevant matters outlined in the Department's Procedures Advice Manual, which included the purpose of a student visa.

The Tribunal found that the applicant had indeed breached condition 8202(2) by not being enrolled in a registered course. However, in exercising its discretion regarding cancellation, the Tribunal considered the applicant's personal circumstances. These included failing subjects due to financial difficulties, his mother's inability to repay a loan if he returned home, his efforts to save money, and his desire to complete his studies. The Tribunal concluded that, on balance, the circumstances warranted setting aside the cancellation decision.

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