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Tribunal: Member Susan Trotter

The Department for Immigration and Border Protection cancelled the applicant’s Subclass 572 Vocational Education and Training Sector visa[1]. The applicant was a 21 year old from Chile, who first arrived in Australia in April 2015.

On 3 October 2017, a Notice of Intention to Consider Cancellation (NOICC) was forwarded to the applicant and he did not respond to this notice. On 3 November 2017, the visa was cancelled on the basis that the applicant had breached a condition of his visa by not remaining enrolled in a registered course [2]. The applicant applied to the AAT for a review of the decision.

The applicant originally came to Australia to improve his English. The applicant did five months of English, then found some work and completed a Certificate III and IV in Commercial Cookery. He was studying a Diploma of Hospitality Management at the time of the review, which was due for completion in July 2018. He planned to start an Advanced Diploma of Hospitality in August 2018 and then return to Chile.

The applicant took two months of leave from study after his grandfather passed away. The applicant claimed that at this point he experienced an issue with one of his tuition payments. He made a payment to his school but they did not realise the payment was from him. This meant that the Department was informed that he had not been studying throughout an extended period when he actually had been. When he received the NOICC from the Department, he fixed the issue with the school but did not realise he had to respond to the Department. He claimed he thought the school would automatically communicate this to the Department.

The AAT accepted an issue arose between the applicant and his educational institution resulting in his enrolment not being correctly registered with the Provider Registration and International Student Management System (PRISMS) until it was retrospectively recorded in November 2017. However, the evidence showed that even after this correction was made the applicant was nonetheless not enrolled in a registered course of study from 24 February 2017 until 10 April 2017 after his grandfather’s passing, and he was in breach of the condition of his visa during that time[3].

There was no evidence that the applicant’s residence in Australia was for anything other than study. The evidence showed that the applicant completed a number of courses of study whilst in Australia and was undertaking a Diploma of Hospitality Management. The AAT was satisfied that the purpose of the applicant’s travel and stay in Australia was to study and that his actions had, generally speaking, been consistent with that purpose. On balance and considering the circumstances as a whole, the AAT concluded that the visa should not be cancelled.

The AAT set aside the decision under review and substituted a decision not to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

Read the full written decision on AustLII.



[1] Section 116(1)(b) of the Migration Act 1958

[2] Condition 8202(2)(a) of schedule 8 to the Migration Regulations 1994

[3] Condition 8202(2)(a) of schedule 8 to the Migration Regulations 1994