Virk (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Student (Temporary) (Class TU) Subclass 500 visa was subject to cancellation. The dispute arose because the applicant had not maintained enrolment in a registered course at the same or a higher Australian Qualifications Framework (AQF) level as that for which the visa was granted, leading to a notification of intention to cancel the visa.

The Tribunal was required to determine whether the applicant had breached Condition 8202 of the Migration Regulations 1994, which mandates maintaining enrolment in a full-time registered course at a specified AQF level, and whether satisfactory course progress or attendance had been achieved. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, having regard to the applicant's circumstances and relevant policy guidelines.

The Tribunal found that the applicant had not complied with Condition 8202, as evidenced by his enrolment in a Certificate IV in Commercial Cookery (AQF Level 4) after his Bachelor of Science (Nursing) enrolment was cancelled and his deferral application was refused. However, the Tribunal exercised its discretion not to cancel the visa. It accepted the applicant's explanation that he had experienced personal difficulties, including mental health issues and injuries requiring him to return to India for medical care, which impacted his ability to maintain his original enrolment. The Tribunal also acknowledged his intention to return to nursing studies and found that while there was an inconsistency in his stated intentions to the Department and the Tribunal regarding his enrolment in hospitality courses, this did not outweigh his compelling reasons for studying in Australia.

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