Walia (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 573 Higher Education Sector visa held by the applicant, Ms. Walia. The dispute centred on whether the applicant had breached condition 8202 of the Migration Regulations 1994, which requires a student visa holder to be enrolled in a registered course. The applicant's visa was cancelled on the grounds that she was not enrolled in a registered course for a significant period.

The Tribunal was required to determine if the applicant had indeed breached condition 8202 by failing to maintain enrolment in a registered course. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, taking into account the specific circumstances of the case and relevant guidelines.

The Tribunal found that the applicant had technically breached condition 8202 by not being enrolled in a registered course for 275 days. However, in considering the exercise of discretion, the Tribunal noted the applicant's naivety in withdrawing from her initial studies without proper advice, her genuine desire to complete nursing studies, and the difficulties she encountered in re-enrolling due to course structures and prerequisites. The Tribunal also took into account the significant financial and emotional hardship the applicant would face if her visa were cancelled, given her age, her parents' financial support, and the potential for her years of study in Australia to be rendered futile. The Tribunal concluded that, on balance, the circumstances warranted setting aside the cancellation decision.

The Tribunal set aside the decision to cancel Ms. Walia's visa and substituted a decision not to cancel her Subclass 573 visa.