NAVA VASQUEZ (Migration)

This matter concerned an application by Nava Vasquez (the applicant) to review a decision to cancel her Student (Temporary) (Class TU) Subclass 572 visa. The applicant had been granted the visa on 15 June 2016, valid for two years. The Department of Home Affairs initiated cancellation proceedings due to the applicant's alleged breach of condition 8202 of the Migration Regulations 1994, specifically that she was not enrolled in a registered course. The applicant did not respond to the Notice of Intention to Consider Cancellation (NOICC).

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of her visa, and if so, whether there were compelling reasons to exercise discretion not to cancel the visa. Condition 8202 requires a student visa holder to be enrolled in a registered course and to maintain satisfactory course progress and attendance. The Tribunal had to determine if the applicant's circumstances constituted a breach and, if a breach was found, whether the discretion to cancel the visa should be exercised in her favour, considering factors such as the purpose of her stay, compliance with visa conditions, and potential hardship.

The Tribunal found that the applicant had indeed breached condition 8202(2) as she was not enrolled in a registered course at the time of the cancellation notice. However, the Tribunal considered the applicant's explanation for this breach, which included completing her Advanced Diploma of Engineering Technology earlier than anticipated due to credits from prior study. She also provided evidence of diligent study and a desire to pursue further engineering qualifications. The Tribunal noted that the NOICC was sent to an incorrect address and that the applicant had relied on incorrect advice regarding her enrolment status. Weighing these factors, including the applicant's demonstrated academic capability, her intention to continue her studies, and the emotional and financial hardship she would face if the visa were cancelled, the Tribunal concluded that there were compelling reasons not to cancel the visa.

Consequently, the Tribunal set aside the decision to cancel the applicant's Subclass 572 visa and substituted a decision not to cancel it.