VALENZUELA (Migration)

This matter concerned an application for review of a decision made by a delegate of the Minister to cancel the applicant’s Subclass 573 Higher Education Sector visa. The cancellation was based on the applicant’s alleged failure to comply with condition 8202 of the Migration Regulations 1994, specifically by not being enrolled in a registered course. The applicant acknowledged ceasing to be enrolled in a registered course.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202(2)(a) of the Regulations, which requires a student visa holder to be enrolled in a registered course. If a breach was found, the Tribunal was then required to consider whether to exercise its discretion to cancel the visa, having regard to various factors including those raised by the applicant and government policy guidelines.

The Tribunal found that the applicant had indeed not complied with condition 8202(2) as they were not enrolled in a registered course. However, in considering the exercise of discretion, the Tribunal had regard to the applicant's personal circumstances, including mental health issues and financial difficulties, which led to their inability to pay tuition fees and continue their studies. The applicant also demonstrated a desire to continue studying in Australia, had secured new employment, and was seeking to enrol in a new course that aligned with their career goals. The Tribunal concluded that, on balance, the circumstances did not warrant the cancellation of the visa.

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