Wong (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Subclass 572 Vocational Education and Training Sector visa was cancelled. The dispute arose because the applicant was no longer enrolled in a registered course, which constituted a breach of visa condition 8202. The applicant contended that this non-compliance was due to unforeseen personal circumstances and that she intended to resume her studies.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of the Migration Regulations 1994, specifically the requirement to be enrolled in a registered course. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, notwithstanding the breach. The applicant's enrolment in an Advanced Diploma of Christian Ministry and Theology was cancelled by the provider due to insufficient enrolments, and her PRISMS record confirmed she had not been enrolled in a registered course since that time.

The Tribunal found that the applicant had indeed failed to comply with condition 8202(2) as she was not enrolled in a registered course. However, in exercising its discretion regarding cancellation, the Tribunal considered the applicant's personal circumstances, including a difficult period of post-natal depression following the birth of her son, her strong desire to complete her chosen course, and her intention to remain in Australia with her Australian citizen partner and son. The Tribunal accepted the applicant's testimony regarding her genuine interest in the course and her remorse for not proactively addressing her circumstances with the Department.

Ultimately, the Tribunal concluded that the circumstances warranted setting aside the visa cancellation decision. The Tribunal substituted a decision not to cancel the applicant's visa, finding that it was appropriate to exercise discretion in her favour given the totality of the evidence presented.