A breach of a visa condition can on occasion be overlooked when the cause is circumstances beyond the applicant’s control. ISL relied on such an approach in a matter involving a review of a cancellation of a subclass 572 visa.
The applicant was granted a Vocational Education and Training Sector visa which was subject to condition 8202. This condition requires the applicant to be enrolled in a registered course, not to have been certified by their education provider as not achieving satisfactory course progress and not to have been certified as not achieving satisfactory course attendance.
The applicant was in breach of the 8202 condition; they had not been registered in a course for one semester. As a result, the Department notified the applicant of their intention to consider cancellation of the visa. The applicant failed to respond and following this, the visa was cancelled. The applicant then sought a review of the cancellation by the Migration Review Tribunal.
ISL submitted that the applicant did not receive the Notice of Intention to Consider Cancellation, that they had a long history of being a genuine student in Australia, and that the applicant failed to register for the second semester of their course due to illness. The applicant had already successfully completed three other tertiary education courses in Australia and was undertaking a fourth. However, during this time the applicant had a family issue which resulted in the applicant suffering from severe depression and being treated for this at hospital. The applicant then failed to register for the subsequent semester of the course. During the time that the applicant was not registered in the course, they continued to receive medical treatment.
ISL submitted that the period of non-enrolment was due to the applicant’s depression. ISL indicated that aside from the one semester, the applicant had otherwise diligently pursued study and since that semester has returned to study.
The Tribunal found that the applicant’s psychological condition was a circumstance beyond their control and caused the non-compliance. The decision was set aside and a new decision not to cancel visa was substituted.
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