ZHU (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Subclass 573 Higher Education Sector visa. The applicant, a student visa holder, was alleged to have breached condition 8202 of the Migration Regulations 1994 by not being enrolled in a registered course. The Department's decision to cancel the visa was based on this alleged breach, which, if established, would permit cancellation under s.116(1) of the Migration Act 1958.

The primary legal issue before the Tribunal was whether the applicant had complied with condition 8202 of Schedule 8 to the Migration Regulations 1994. Specifically, the Tribunal had to determine if the applicant was enrolled in a registered course, as required by condition 8202(2), and whether the applicant had failed to achieve satisfactory course progress or attendance, as stipulated in condition 8202(3).

The Tribunal found that the cancellation decision was made in error. It was established that departmental records, which had been overlooked, clearly indicated the applicant was enrolled in a registered course for the entire period in question. As the applicant was enrolled and had not breached condition 8202, the ground for cancellation under s.116(1)(b) did not arise. Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's visa.