Sohaib (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Student (Temporary) (Class TU) visa, subclass 573, was cancelled. The cancellation was based on an alleged breach of condition 8202 of the Migration Regulations 1994, specifically concerning enrolment in a registered course. The applicant contended that a natural disaster in their home country and subsequent administrative issues prevented timely re-enrolment, and that they had made genuine efforts to rectify the situation.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of their visa, which requires the holder to be enrolled in a registered course and to achieve 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, taking into account all relevant circumstances. The applicant argued that despite a period of non-enrolment, the circumstances surrounding this period, including a significant natural disaster in their home country and difficulties with their education provider, warranted leniency.

The Tribunal found that the applicant had indeed not been enrolled in a registered course during the specified period, thus technically breaching condition 8202(2). However, in exercising its discretion regarding cancellation, the Tribunal had regard to the applicant's submissions and evidence. This included a statutory declaration detailing the impact of an earthquake in their home country, which caused structural damage to their home and injured a family member, significantly affecting their mental and physical health. The Tribunal also considered the applicant's documented efforts to re-enrol, the subsequent changes in course structure, and the advice received from migration consultants.

Ultimately, the Tribunal concluded that the circumstances as a whole justified setting aside the decision to cancel the applicant's visa. The Tribunal substituted a decision not to cancel the visa, allowing the applicant to continue their studies.