Tariq (Migration)

The Administrative Appeals Tribunal considered whether to set aside a decision to cancel the Subclass 573 Higher Education Sector visa held by the applicant, Tariq. The dispute arose because the applicant was not enrolled in a registered course for a period between February 2017 and February 2018, which constituted a breach of condition 8202 of the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the applicant had complied with condition 8202 of Schedule 8 to the Migration Regulations 1994, which requires a student visa holder to be enrolled in a registered course. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa under s.116(1) of the Migration Act 1958.

The Tribunal found that the applicant had indeed failed to maintain enrolment in a registered course, thus breaching condition 8202(2). However, the Tribunal also made several factual findings: the applicant had sought and been granted medical leave from his studies, had received incorrect advice from university staff regarding his enrolment status during this leave, and had resumed studies and paid tuition fees despite not having a current Confirmation of Enrolment. Crucially, the documents supporting these findings were not before the Department when the cancellation decision was made. Applying the principles of discretion, the Tribunal weighed the applicant's demonstrated intention to study, the circumstances of the breach being beyond his control and due to misleading advice, and the significant personal detriment the cancellation would cause.

Considering these factors, the Tribunal concluded that the visa should not be cancelled. The decision under review was set aside, and a substituted decision was made not to cancel the applicant's visa.