Mare (Migration)

This matter concerned an application for review of a decision by a delegate of the Minister for Home Affairs to cancel the applicant's Subclass 500 (Student) visa. The cancellation was based on the applicant's alleged breach of condition 8202 of the Migration Regulations 1994, specifically that she was not enrolled in a full-time registered course. The applicant contended that extenuating circumstances, including pregnancy and relationship difficulties, led to her temporary cessation of studies and subsequent re-enrolment.

The primary legal issue before the Tribunal was whether the applicant had complied with condition 8202 of the Migration Regulations 1994, which requires a student visa holder to be enrolled in a full-time registered course and to maintain satisfactory course progress and attendance. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, having regard to various factors including the applicant's personal circumstances, the impact on her Australian citizen children, and government policy guidelines.

The Tribunal found that the applicant had indeed not been enrolled in a registered course between 16 February 2018 and 26 March 2019, thus technically breaching condition 8202(2)(a). However, in considering the exercise of its discretion to cancel the visa, the Tribunal gave significant weight to the applicant's explanation for the non-compliance. This included her pregnancy, relationship difficulties, and her genuine intention to complete her studies for the benefit of herself and her son, who was an Australian citizen. The Tribunal noted her efforts to re-enrol and her plans to pursue higher education.

Ultimately, the Tribunal concluded that the circumstances as a whole warranted setting aside the delegate's decision to cancel the visa. The Tribunal substituted a decision not to cancel the applicant's Subclass 500 (Student) visa, acknowledging the extenuating circumstances and the applicant's demonstrated commitment to her studies and her family.