Patel (Migration)

The Administrative Appeals Tribunal considered a decision to cancel the Subclass 573 Higher Education Sector visa of the applicant, Mr. Patel. The dispute arose from the applicant's alleged breach of condition 8202 of the Migration Regulations 1994, which requires a student visa holder to remain enrolled in a registered course. The applicant's visa was cancelled on the basis that he was not enrolled in a registered course between 9 October 2016 and 20 February 2017.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202(2) of the Migration Regulations by failing to maintain continuous 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, having regard to the applicant's submissions and relevant government policy guidelines.

The Tribunal found that while the applicant was not enrolled in a registered course during the specified period, he had actively sought to rectify this situation. Evidence showed that the applicant had completed his diploma course and, due to insufficient marks, was unable to gain entry into his intended bachelor's degree. He then researched and identified an alternative bachelor's degree in computer science, requesting a change of enrolment on 11 January 2017, prior to receiving a Notice of Intention to Cancel (NOICC). The Tribunal was satisfied that the applicant had been actively corresponding with his university about changing his course and genuinely wished to continue his studies at a higher education level.

Considering the applicant's proactive steps to secure alternative enrolment and his clear intention to continue his studies, the Tribunal concluded that the visa should not be cancelled. The Tribunal set aside the cancellation decision and substituted a decision not to cancel the applicant's visa.