Sinhapruthivi Arachchillage (Migration)

The Administrative Appeals Tribunal considered the cancellation of the applicant's Student (Temporary) (Class TU) visa, Subclass 573 (Higher Education Sector). The applicant held this visa and was subject to condition 8202 of the Migration Regulations 1994, which requires a student visa holder to be enrolled in a registered course and maintain satisfactory course progress and attendance. The visa was cancelled on the grounds that the applicant was not enrolled in a registered course.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of her visa by failing to be enrolled in a registered course, and if so, whether the discretion to cancel her visa should be exercised. The Tribunal was required to determine if the applicant had complied with the enrolment requirements of her student visa.

The Tribunal found that the applicant had not complied with condition 8202(2) as she was not enrolled in a registered course from 31 December 2016. However, the Tribunal then considered the discretion to cancel the visa. It had regard to the applicant's circumstances, including her intention to enrol in a one-year Masters degree in Education, which was part of her overall study plan to establish an educational facility for children upon her return home. The Tribunal also considered the psychological and emotional hardship for the applicant and her partner, and the impact on the partner's education and employment prospects. Weighing these factors, the Tribunal concluded that the visa should not be cancelled.

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