Teixeira de Castro (Migration)

This matter concerned an application by a 23-year-old Brazilian national for review of a decision to cancel his Subclass 500 (Student) visa. The applicant had arrived in Australia in August 2019 and was granted the visa in April 2021 to undertake study in a Diploma of Social Media Marketing and an Advanced Diploma of Marketing and Communication. The visa was subject to, among other conditions, condition 8202, which requires a student visa holder to be enrolled in a full-time registered course and maintain that enrolment. The applicant's visa was cancelled on the basis that he had not been enrolled in a course since May 2021.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of his student visa. If a breach was established, the Tribunal was then required to consider whether to exercise its discretion to cancel the visa under section 116(1) of the Migration Act 1958 (Cth). The applicant contended that he had been advised that a temporary period of non-enrolment was permissible and that his circumstances had been impacted by the COVID-19 pandemic and financial difficulties, leading to a misunderstanding with his education provider.

The Tribunal found that the applicant had indeed failed to comply with condition 8202, as his enrolment had been cancelled by his provider in May 2021 due to non-payment of fees and non-commencement of studies. However, in considering the exercise of discretion, the Tribunal had regard to various documents submitted by the applicant, including evidence of substantial completion of some units of study, his stated intention to obtain qualifications to assist his future career in Brazil, and a recent significant foot injury requiring ongoing medical treatment and potentially further surgery, which would make long-haul travel difficult in the near future. The Tribunal also noted that the applicant's responses to adverse information appeared genuine.

Ultimately, the Tribunal concluded that, considering all the circumstances, 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 Subclass 500 (Student) visa.