Mcremson Papa (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Subclass 573 (Higher Education Sector) visa was cancelled. The dispute arose because the applicant was found not to be enrolled in a registered course, which constituted a breach of condition 8202 of the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202(2) of the Migration Regulations 1994, and if so, whether the Tribunal should exercise its discretion to set aside the visa cancellation. Condition 8202(2) requires a visa holder to be enrolled in a registered course.

The Tribunal found that the applicant had indeed breached condition 8202(2) as they were not enrolled in a registered course on the relevant date. However, the Tribunal then considered its discretion to cancel the visa. In doing so, it had regard to the applicant's personal circumstances, including their previous study history, difficulties in passing foundation courses, a desire to change fields of study, and attempts to re-enrol in a new course. The Tribunal also considered government policy guidelines. The Tribunal concluded that the hardship of cancellation outweighed the grounds for cancellation, particularly given the applicant's efforts to re-enrol and their timely response to the notice of intention to cancel.

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