Shahi (Migration)

The Administrative Appeals Tribunal considered the cancellation of the applicant's Student (Temporary) (Class TU) visa (Subclass 500). The applicant's visa was cancelled by the Department of Home Affairs on the grounds that they had not been enrolled in a registered course of study between 13 July 2019 and 1 November 2019, thereby breaching condition 8202 of the *Migration Regulations 1994*.

The Tribunal was required to determine whether the applicant had breached condition 8202 of their visa. This condition mandates that a student visa holder must be enrolled in a full-time registered course and maintain enrolment in a course that leads to a qualification at the same or a higher Australian Qualifications Framework (AQF) level than the course for which the visa was granted. The Tribunal also had to consider whether, having found a breach, the discretion to cancel the visa should be exercised.

The Tribunal found that the applicant had indeed not been enrolled in a registered course for a period of three and a half months, which constituted a breach of condition 8202(2). However, in exercising its discretion regarding cancellation, the Tribunal had regard to the applicant's circumstances. It noted the applicant's intention to study in Australia since November 2017, his difficulties with the initial Bachelor of Information Technology course, and his subsequent enrolment in a lower-level Diploma course to build foundational knowledge. The Tribunal accepted the applicant's explanation for the short enrolment gap, including family illness and efforts to resolve his study pathway. Crucially, the applicant had a letter of offer for a further Diploma course and intended to complete a Bachelor's degree thereafter, demonstrating a continued intention to study.

Consequently, the Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel it.