Mites Diaz (Migration)

The Administrative Appeals Tribunal considered the case of Mites Diaz concerning the cancellation of his Student (Temporary) (Class TU) visa, Subclass 573 (Higher Education Sector). The dispute arose from the applicant's failure to maintain enrolment 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 complied with condition 8202 of his visa, specifically subclause (2) requiring 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, despite the breach, by assessing the applicant's circumstances and the potential hardship that cancellation would cause.

The Tribunal found that the applicant had indeed breached condition 8202(2) by not being enrolled in a registered course between October 2016 and September 2017, an admission the applicant made. However, in considering the discretion to cancel, the Tribunal took into account the applicant's history of academic difficulty, including struggles with adjusting to studying in Australia, a diagnosis of depression which significantly impacted his studies, and financial difficulties stemming from delayed scholarship payments from the Ecuadorian government. Despite concerns about the applicant's future academic success, the Tribunal concluded that the applicant had made genuine efforts to continue his studies and that cancelling his visa would cause significant hardship, particularly the obligation to repay substantial scholarship funds to the Ecuadorian government.

Consequently, the Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel it, thereby allowing the applicant the opportunity to complete his course in Australia.