Syukur (Migration)

This matter concerned the review of a decision to cancel the applicant's Subclass 500 (Student) visa. The applicant had been granted the visa to undertake registered courses of study in Australia. The visa was cancelled on the basis that the applicant had breached condition 8202 of the Migration Regulations 1994 (Cth) by not being enrolled in a full-time registered course. The applicant's Certificate of Enrolment (COE) had been cancelled on 20 January 2020, and she did not re-enrol until 20 April 2022, resulting in a period of approximately two years and three months of non-enrolment.

The primary legal issue before the Tribunal was whether the applicant had complied with condition 8202 of the Migration Regulations 1994. This condition requires a student visa holder to be enrolled in a full-time registered course and to maintain enrolment in a registered course that leads to a qualification at the same or a higher level than the course for which the visa was granted. If a breach of this condition 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 not maintained enrolment in a registered course between January 2020 and April 2022, and therefore had not complied with condition 8202(2)(a). However, in considering the exercise of discretion to cancel the visa, the Tribunal had regard to the applicant's sworn evidence. She explained that her non-enrolment was due to a pregnancy, her subsequent attempt to defer her studies which she believed was accepted by her education provider, and difficulties in communicating with the college due to changed contact details and a subsequent severe illness with COVID-19. She also described issues with the college regarding re-enrolment fees and the transfer of academic credits, which led her to enrol in a new college.

Considering all the circumstances, the Tribunal concluded that the visa should not be cancelled. The decision under review was set aside, and a decision was substituted to not cancel the applicant's Subclass 500 (Student) visa. The Tribunal noted it had no jurisdiction with respect to other applicants.