Ren (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 573 (Higher Education Sector) visa of the applicant, a Chinese national. The cancellation was based on the applicant's alleged failure to comply with Condition 8202 of the Migration Regulations 1994, specifically the requirement to be enrolled in a registered course. The applicant contended that despite a period of non-enrolment, there were compelling reasons for her to remain in Australia and that the visa should not be cancelled.

The Tribunal was required to determine whether the applicant had breached Condition 8202 by not being enrolled in a registered course, and if so, whether the discretion to cancel the visa should be exercised. Condition 8202 mandates that a student visa holder must be enrolled in a registered course and maintain satisfactory academic progress and attendance. The applicant's visa was cancelled on the basis that her enrolment records indicated a period of non-enrolment.

The Tribunal found that the applicant had indeed not been enrolled in a registered course between 20 July 2016 and 8 June 2017, thus breaching Condition 8202(2). However, the Tribunal then considered the exercise of its discretion regarding visa cancellation. It took into account the applicant's stated purpose of obtaining a tertiary education in Australia due to limited opportunities in her home province, her efforts to re-enrol after encountering difficulties, and the fact that she was less than 12 months from completing her degree. The Tribunal also considered evidence of financial difficulties beyond her control and mental health issues that rendered her unfit for studies during the period of non-enrolment.

Ultimately, the Tribunal concluded that, considering all the circumstances, the decision to cancel the applicant's visa should be set aside. The Tribunal substituted a decision not to cancel the visa, allowing the applicant to continue her studies.