Wijesuriya (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Student (Temporary) (Class TU) visa, subclass 500, was cancelled by the Department of Home Affairs. The cancellation was based on the applicant's alleged failure to comply with condition 8202 of the Migration Regulations 1994, specifically the requirement to be enrolled in a registered course. The applicant sought review of this decision.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of her visa. This condition, as relevant, required the applicant to be enrolled in a registered course and to maintain satisfactory course progress and attendance. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, having regard to the circumstances of the case.

The Tribunal found that the applicant was indeed not enrolled in a registered course for a substantial period, from 15 June 2017 to 25 June 2018, thus breaching condition 8202(2). However, in considering the discretion to cancel the visa, the Tribunal took into account the applicant's compelling personal circumstances. These included severe stress related to her studies, emotional distress from a relationship breakdown, and significant distress due to her sister's serious medical condition and hospitalisation. Despite the lengthy period of non-enrolment, the Tribunal concluded that, on balance, the visa should not be cancelled.

Consequently, the Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel her Subclass 500 (Student) visa.