Otieno (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Student (Temporary) (Class TU) visa, Subclass 573 Higher Education Sector, was cancelled. The dispute arose because the applicant was not enrolled in a registered course for approximately ten months, leading to the cancellation of his visa by the Department of Home Affairs.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of the Migration Regulations 1994, which requires a student visa holder to be enrolled in a registered course and to maintain satisfactory course progress and attendance. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, taking into account the applicant's circumstances.

The Tribunal found that the applicant had indeed breached condition 8202(2) by not being enrolled in a registered course between September 2017 and July 2018. However, in considering the exercise of discretion, the Tribunal took into account significant personal circumstances that impacted the applicant's ability to study. These included the serious illness and subsequent death of his grandfather, his father's urgent and expensive medical treatment requiring financial remittances to Kenya, and the resulting emotional and financial stress. The Tribunal accepted that these events were beyond the applicant's control and that he had made genuine attempts to re-enrol in a Bachelor of Nursing course at other institutions.

Consequently, the Tribunal concluded that the breach of condition 8202(2) was not the applicant's fault and occurred due to circumstances beyond his control. Therefore, the Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel it.