Sajid (Migration)

The Administrative Appeals Tribunal considered the cancellation of the applicant's Student (Temporary) (Class TU) visa, subclass 573 (Higher Education Sector). The dispute arose because the applicant was not enrolled in a registered course, which is a condition of the visa. The applicant had continued studying and completed his course, and had also enrolled in and almost completed another course with a different provider.

The Tribunal was required to determine whether the applicant had breached condition 8202 of the Migration Regulations 1994, which mandates enrolment in a registered course and satisfactory academic progress and attendance. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa under section 116(1) of the Migration Act 1958.

The Tribunal found that the applicant had indeed breached condition 8202 by not being enrolled in a registered course for a period exceeding nine months. However, it noted that this ground did not mandate cancellation. In exercising its discretion, the Tribunal gave considerable weight to the applicant's explanation that his non-enrolment was likely due to administrative error or oversight by his education provider, TAFE NSW, possibly compounded by his own confusion. The Tribunal was persuaded that the applicant had been permitted by TAFE NSW to continue attending classes and submitting work during this period, and had subsequently completed his diploma.

Consequently, the Tribunal set aside the decision to cancel the applicant's visa, finding that the circumstances of the breach weighed in favour of exercising its discretion not to cancel.