Raffiudheen (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Student (Temporary) (Class TU) visa, subclass 573, was cancelled on the grounds of non-compliance with condition 8202(2) of the Migration Regulations 1994, specifically for not being enrolled in a registered course. The applicant had initially arrived in Australia in 2012 and had completed a Certificate III in Commercial Cooking. His enrolment in a Bachelor of IT was cancelled in August 2017 due to not having studied for eight months, and he subsequently enrolled in a Bachelor of Business after receiving a notice of intention to consider cancellation.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202(2) by failing to be enrolled in a registered course, and if so, whether the discretion to cancel his visa should be exercised. The Tribunal was required to consider the applicant's circumstances, including his reasons for non-compliance, his family situation in Australia, and any potential hardship.

The Tribunal found that the applicant had indeed not been enrolled in a registered course since August 2017, thus breaching condition 8202(2). However, in exercising its discretion regarding visa cancellation, the Tribunal had regard to several factors. It noted the applicant's psychological difficulties which led to a reduced study load, his marriage to a woman who also held a student visa and was studying in Australia, and their infant son born in Australia. The Tribunal considered that there was a compelling need for the applicant to remain in Australia as part of his family unit. While acknowledging the significance of the non-compliance, the Tribunal ultimately concluded that, considering all circumstances, the visa should not be cancelled.

Consequently, the Tribunal set aside the decision to cancel the applicant's Subclass 573 Higher Education Sector visa and substituted a decision not to cancel it.