TAMANG (Migration)

This matter concerned the review of a decision to cancel the Subclass 573 (Higher Education Sector) visa held by the applicant, Mr. Tamang. The cancellation was based on the delegate's finding that the applicant had breached condition 8202 of the *Migration Regulations 1994* by not being enrolled in a registered course of study since 23 April 2016. The applicant did not respond to the Notice of Intention to Consider Cancellation.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of the *Migration Regulations 1994*, which requires a visa 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 the visa should be cancelled under section 116(1) of the *Migration Act 1958*.

The Tribunal considered evidence that the applicant had experienced significant personal difficulties, including a diagnosis of 'Facial Palsy' which interrupted his studies in 2015, followed by mental health issues, financial pressures, and deterioration of personal relationships, leading him to cease attending college in April 2016. The Tribunal found that these circumstances, particularly the mental health condition, were beyond the applicant's control and explained his non-compliance with the enrolment condition. Applying a holistic consideration of these circumstances, the Tribunal concluded that the visa should not be cancelled.

The Tribunal set aside the delegate's decision and substituted a decision not to cancel the applicant's Subclass 573 visa.