Sok (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 573 Higher Education Sector visa of an applicant. The dispute centred on whether the applicant had breached condition 8202 of the Migration Regulations 1994, which requires a student visa holder to be enrolled in a registered course and to maintain satisfactory course progress and attendance.

The primary legal issue before the Tribunal was whether the applicant had complied with condition 8202 of the Migration Regulations 1994. Specifically, the Tribunal had to determine if the applicant was enrolled in a registered course, as indicated by updated records in the Provider Registration and International Student Management System (PRISMS), and if the delegate of the Minister had correctly assessed the validity and currency of the applicant's Confirmation of Enrolment.

The Tribunal found that the delegate's decision to cancel the visa was based on information from PRISMS suggesting the applicant's enrolment had expired and that the University of South Australia had notified the Department of Immigration and Border Protection that the applicant had ceased studies. However, the Tribunal noted that the applicant had provided evidence, including a copy of a Confirmation of Enrolment, which appeared to be current at the time of the delegate's decision. Crucially, the Tribunal found no evidence on the file to support the delegate's findings regarding the expiry of the Confirmation of Enrolment or the notification from the university. As the applicant had not failed to comply with condition 8202, the ground for cancellation under s.116(1)(b) of the Act did not arise.

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