Sadiq (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Student (Temporary) (Class TU) visa, Subclass 573 (Higher Education Sector), was cancelled. The cancellation was based on the applicant's alleged failure to comply with condition 8202 of the Migration Regulations 1994, specifically by not being enrolled in a registered course of study. The applicant contended that a period of non-enrolment was due to compelling circumstances beyond his control, including his father's ill-health, difficulties with his studies, and administrative issues preventing timely enrolment at a new institution.

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 and to maintain satisfactory course progress and attendance. If a breach was found, the Tribunal then had to determine whether to exercise its discretion to cancel the visa, considering the applicant's circumstances and relevant government policy. The applicant's visa was cancelled on the basis that information from the Provider Registration and International Student Management System (PRISMS) indicated he had not been enrolled in a registered course between August 2016 and May 2017.

The Tribunal found that the applicant had indeed breached condition 8202(2)(a) by not being enrolled in a registered course for a period exceeding four months. However, the Tribunal noted that this was a discretionary, not mandatory, cancellation. In exercising its discretion, the Tribunal had regard to the applicant's explanations for the non-enrolment, including his father's serious illness, his return to Pakistan, and difficulties in securing enrolment at a new university due to administrative delays. The Tribunal found that the applicant's efforts to re-enrol and his overall conduct suggested he was a genuine student. Weighing these factors, the Tribunal concluded that the circumstances of the breach, while a non-compliance, were not significant enough to warrant cancellation.

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