MISTRY (Migration)

The Administrative Appeals Tribunal (the Tribunal) considered an application by Mistry for review of a decision by the Minister to cancel her Student (Temporary) (Class TU) visa, subclass 573 Higher Education Sector. The cancellation was based on Mistry's failure to maintain enrolment in a registered higher education course. Mistry contended that compelling and compassionate circumstances warranted the visa's reinstatement.

The primary legal issue before the Tribunal was whether Mistry had demonstrated compelling and compassionate circumstances that justified setting aside the visa cancellation decision. This involved assessing the significance of the delay in her enrolment due to an expired English test score, her brief period of non-enrolment during the academic summer break, and the impact of family illness. The Tribunal also considered evidence of Mistry's efforts to secure enrolment in a course.

In its reasoning, the Tribunal acknowledged that while the delay in enrolment was a breach of visa conditions, it was not entirely within Mistry's control and was exacerbated by the timing of her English test score expiry. The Tribunal found that the period of non-enrolment during the summer break was short and did not indicate a lack of genuine intention to study. Furthermore, the Tribunal gave weight to the family illness and the fact that Mistry had a conditional offer of enrolment from a university, demonstrating her continued commitment to her studies. The Tribunal concluded that the circumstances, taken together, were compelling and compassionate.

Consequently, the Tribunal set aside the Minister's decision to cancel Mistry's visa and substituted a decision to reinstate the visa.