Patel (Migration)

This matter concerned an application by Mr Patel, the holder of a Student (Temporary) (Class TU) visa, subclass 500, for review of a decision to cancel his visa. The cancellation was based on an alleged breach of condition 8202 of the Migration Regulations 1994, which requires a student visa holder to maintain enrolment in a full-time registered course. The applicant had been enrolled in a Master of Public Health course, but his enrolment was cancelled for non-commencement of studies, resulting in a period of approximately 12 months where he was not enrolled in a registered course.

The primary legal issue before the Tribunal was whether Mr Patel had breached condition 8202(2)(a) of his visa, and if so, whether the discretion to cancel his visa should be exercised. Condition 8202(2)(a) mandates that a student visa holder must maintain enrolment in a full-time registered course, a requirement that is continuous. The delegate’s finding of a breach was based on information from the Provider Registration and International Student Management System (PRISMS), which indicated a 12-month period of non-enrolment.

The Tribunal found that Mr Patel had indeed breached condition 8202(2)(a) by failing to maintain enrolment for approximately 12 months. However, in considering the exercise of discretion to cancel the visa, the Tribunal weighed the circumstances of the breach. It concluded that the breach was not due to recklessness or indifference on Mr Patel's part, but rather a failure of communication with his course provider. Mr Patel accepted responsibility for this communication breakdown and had taken steps to re-enrol, acting on advice received from the university. The Tribunal placed significant weight on these factors, finding that, on balance, the visa should not be cancelled.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel Mr Patel's Subclass 500 (Student) visa.