Mawanda (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Subclass 573 Higher Education Sector visa held by the applicant, Mawanda. The dispute arose because the Department of Home Affairs had cancelled the applicant's visa on the grounds that he had breached condition 8202 of the Migration Regulations 1994 by not being enrolled in a registered course of study for a period of 11 months. The applicant did not dispute this factual finding but sought to have the cancellation decision reviewed.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of his visa, and if so, whether the discretion to cancel his visa should be exercised. Condition 8202 requires a student visa holder to be enrolled in a registered course and to maintain satisfactory course progress and attendance. The Tribunal was required to determine if the applicant's failure to be enrolled in a registered course constituted a breach of this condition and, consequently, whether the visa cancellation was warranted, considering all relevant circumstances.

The Tribunal found that the applicant had indeed breached condition 8202(2) by not being enrolled in a registered course for the specified period. However, the Tribunal then considered its discretion regarding the cancellation of the visa. It took into account the applicant's original intention to study in Australia, his otherwise good compliance with visa conditions, and the significant financial and emotional hardship he would face if his visa were cancelled, including the inability to complete his MBA studies which were being funded by his parents. The Tribunal also noted that the circumstances leading to the breach were not presented as being beyond the applicant's control.

On balance, the Tribunal concluded that the applicant's visa should not be cancelled. It weighed the breach of condition against the applicant's academic achievements, his stated future goals, and the hardship he would experience. Consequently, the Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel it.