Roberts (Migration)

The Administrative Appeals Tribunal considered whether to cancel the Subclass 573 Higher Education Sector visa of an Indian national. The applicant's visa was cancelled by the Department on the grounds that he had breached condition 8202 of the Migration Regulations 1994 by ceasing to be enrolled in a registered course of study. The applicant contended that any period of non-enrolment was due to an ongoing illness and that his enrolment had been reinstated.

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. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, having regard to the circumstances of the case. Condition 8202(2) mandates that the holder must be enrolled in a registered course, and the Department's cancellation was based on a finding that the applicant was un-enrolled for a period of seven months.

The Tribunal found that while there was a period where the applicant was not enrolled, the evidence suggested this was for approximately three months and was directly attributable to an ongoing illness, which led to a temporary cancellation of his enrolment due to poor academic progress. The applicant had appealed this cancellation with his university and was reinstated, providing a current Certificate of Enrolment. The Tribunal considered the applicant's compelling need to complete his nursing degree to return to India and assist his aging parents and manage the family farm, the temporary nature of the non-enrolment due to illness, and the hardship that cancellation would cause to him and his family.

Ultimately, the Tribunal concluded that, in light of the circumstances, the visa should not be cancelled. The decision under review was set aside, and a decision was substituted to not cancel the applicant's Subclass 573 Higher Education Sector visa.