Sahota (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Subclass 500 (Student) visa held by the applicant. The dispute arose because the applicant had ceased enrolment in a registered course, which led to the delegate's decision to cancel the visa under section 116(1) of the Migration Act 1958 (Cth) for alleged breach of condition 8202 of the Migration Regulations 1994 (Cth).

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202, specifically the requirement to be enrolled in a full-time registered course. This condition mandates that a student visa holder must maintain enrolment in a registered course that leads to a qualification at the same or a higher level than the course for which the visa was granted, and must not have been certified by their education provider as failing to achieve satisfactory course progress or attendance. The delegate's decision was based on the information recorded in the Provider Registration and International Student Management System (PRISMS), which indicated a gap in the applicant's enrolment.

The Tribunal reasoned that while the PRISMS record suggested a period of non-enrolment, there was evidence, including email correspondence, indicating the applicant remained enrolled with their education provider, Sydney Metro College, during the relevant period. Crucially, the Tribunal noted that the education provider failed to upload confirmation of the applicant's enrolment onto PRISMS, which constituted a breach of their statutory duty under section 19 of the Education Services for Overseas Students Act 2000 (Cth). Despite attempts to clarify the enrolment status with the education provider, no response was received. Consequently, the Tribunal was not satisfied, on the evidence before it and the PRISMS record alone, that the applicant had failed to maintain enrolment.

The Tribunal set aside the decision to cancel the applicant's Subclass 500 (Student) visa and substituted a decision not to cancel the visa.