Sherpa (Migration)

This matter concerned an application by a student visa holder to review the cancellation of her Subclass 500 (Student) visa. The applicant had been enrolled in a Bachelor of Accounting course, but there was a period of approximately 13 months during which she was not enrolled in a registered course, leading to the Department of Home Affairs considering cancellation of her visa under section 116(1) of the Migration Act 1958 (Cth) for failing to comply with condition 8202 of Schedule 8 to the Migration Regulations 1994 (Cth).

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of the Migration Regulations, which requires a student visa holder to be enrolled in a full-time registered course and to maintain satisfactory course progress and attendance. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa.

The Tribunal found that the applicant had indeed failed to comply with condition 8202(2)(a) as she was not enrolled in a full-time registered course for the period identified by the Department. However, in exercising its discretion regarding cancellation, the Tribunal considered various factors, including the applicant's original purpose for coming to Australia, her academic progress in subsequent studies, the potential hardship she would face if her visa were cancelled, and the fact that she had made renewed academic progress and was enrolled in a course relevant to her future employment. On balance, the Tribunal determined that the applicant should be given the opportunity to complete her degree.

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