Wijethunga Mudiyanselage (Migration)

This matter concerned an application by the first named applicant, Ms. Wijethunga Mudiyanselage, for review of a decision to cancel her Student (Temporary) (Class TU) visa, Subclass 573 Higher Education Sector. The applicant contended that she had a genuine desire to pursue childhood development studies but was subjected to familial coercion to pursue alternative educational coursework, which, coupled with psychological issues, led to her non-compliance with visa conditions. The decision under review was made by the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the applicant had breached a condition of her visa, specifically condition 8202 which requires the holder to be enrolled in a registered course and 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, weighing the applicant's circumstances against the grounds for cancellation. A further issue arose regarding the applicant's enrolment history and the discrepancy between her claims and the Provider Registration and International Student Management Systems (PRISMS) record.

The Tribunal found that the applicant had not complied with condition 8202 of her visa, as the PRISMS record indicated she had completed coursework for a Diploma of Hospitality when she claimed otherwise. However, after receiving a letter from her former education provider and contacting them to verify its authenticity, the Tribunal was satisfied that the applicant had participated in a Diploma and Advanced Diploma, and that the PRISMS record likely reflected tuition fees paid rather than satisfactory academic progress. The Tribunal also considered the applicant's psychological conditions and familial coercion as extenuating circumstances. Despite the breach of visa conditions for a notable period, the Tribunal concluded that these favourable factors, cumulatively considered, outweighed the unfavourable factors, leading to a decision marginally in the applicant's favour.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the first named applicant’s Class TU student visa. The Tribunal noted that the applicant would need to apply for a new visa due to changes in visa subclasses. The Tribunal also clarified it had no jurisdiction with respect to the other applicant.