SHAHI (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Student (Temporary) (Class TU) visa, Subclass 573 (Higher Education Sector), held by the applicant. The dispute arose because the applicant was not enrolled in a registered course, which constituted a breach of visa condition 8202. The Tribunal was required to determine whether the applicant had complied with condition 8202 and, if not, whether to exercise its discretion to cancel the visa.

The Tribunal found that the applicant had indeed breached condition 8202(2) by not being enrolled in a registered course. This non-compliance stemmed from the applicant's absence from Australia for two months due to his father's illness, during which period he was unenrolled from his course. The Tribunal acknowledged this as a significant breach, particularly as the applicant remained unenrolled for nine months. However, the Tribunal then considered its discretion regarding visa cancellation. It took into account the applicant's stated intention to study, gain work experience, and return to his home country, as well as his re-commencement of studies with satisfactory academic results.

Ultimately, the Tribunal concluded that, despite the significant breach of visa conditions, the circumstances as a whole warranted setting aside the cancellation decision. The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant’s visa.