Martinez Ceballos (Migration)

The Administrative Appeals Tribunal considered the case of a 32-year-old Colombian national, the applicant, whose Subclass 500 (Student) visa was subject to cancellation. The dispute arose because the applicant had not been enrolled in a registered course of study since November 2021, potentially breaching condition 8202 of the Migration Regulations 1994. The applicant had been granted the visa in November 2020 to undertake studies in Australia.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of her visa, which requires a student visa holder to maintain enrolment in a registered course. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa under section 116(1) of the Migration Act 1958. The applicant contended that her non-compliance was due to significant financial and mental health difficulties, exacerbated by the COVID-19 pandemic and the death of her uncle, which led to severe depression and an inability to pay substantial penalties to change education providers.

The Tribunal acknowledged that the applicant had indeed failed to comply with the enrolment condition. However, in exercising its discretion regarding cancellation, the Tribunal had regard to the applicant's compelling need to remain in Australia to complete her Advanced Diploma of Civil Construction Design. The Tribunal accepted that the applicant had made substantial progress in her studies, having completed 75% of the course, and had invested significant financial resources into her education. Given her intention to return to her home country upon completion and the considerable progress made, the Tribunal concluded that the visa should not be cancelled.

Consequently, the Tribunal set aside the decision to cancel the applicant's Subclass 500 (Student) visa and substituted a decision not to cancel it.