Musila (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the visa of the applicant, Ms. Musila, who held a Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector visa. The dispute arose because Ms. Musila was not enrolled in a registered course, which constituted a breach of condition 8202 of the Migration Regulations 1994. This breach led the Department to issue a Notice of Intention to Consider Cancellation, and subsequently, the applicant's visa was cancelled. Ms. Musila sought review of this cancellation decision by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of the Migration Regulations 1994 by failing to be enrolled in a registered course. If a breach was found, the Tribunal then had to consider whether to exercise its discretion under section 116(1) of the Act to cancel the visa, taking into account the specific circumstances of the applicant's case.

The Tribunal found that the applicant had indeed not complied with condition 8202(2) as she was not enrolled in a registered course. However, in considering the exercise of its discretion, the Tribunal had regard to the applicant's detailed explanation for her non-compliance. This included evidence of significant financial difficulties stemming from her parents' inability to provide financial support due to political violence in Kenya, which also caused her emotional distress. The Tribunal also considered her academic history, her genuine intention to study in Australia, and her efforts to re-enrol and comply with migration rules.

Ultimately, the Tribunal concluded that, on the totality of the evidence, the circumstances warranted setting aside the cancellation decision. The Tribunal substituted a decision not to cancel Ms. Musila's visa.