2005289 (Migration)

The Administrative Appeals Tribunal considered a decision to cancel the Subclass 500 (Student) visa of a Fijian national. The applicant's visa was cancelled by the Department of Home Affairs on the grounds that he had not maintained enrolment in a full-time registered course of study from 17 December 2018 until the cancellation date of 13 March 2020, thereby breaching condition 8202 of the Migration Regulations 1994.

The Tribunal was required to determine whether the applicant had breached condition 8202 of his visa, which mandates enrolment in a full-time registered course and 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, having regard to the circumstances presented by the applicant. The applicant contended that his non-compliance was partly due to family medical issues, specifically his grandfather's serious illness, and financial hardship resulting from his father losing his job in Fiji. He also claimed to have suffered depression, which impacted his ability to study.

The Tribunal found that the applicant had indeed failed to maintain enrolment in a registered course, thus breaching condition 8202(2)(a) of his visa, making it liable for cancellation under section 116(1)(b) of the Migration Act 1958. However, in considering the exercise of discretion, the Tribunal acknowledged that the applicant's circumstances, including his grandfather's severe illness and his father's job loss, contributed to his financial difficulties and depression. While the applicant's prolonged period of non-enrolment was partly his responsibility, the Tribunal also recognised factors beyond his control. Crucially, the applicant expressed a strong intention to continue his studies, having obtained a letter of offer for a new course and with the financial support of his wife's family.

Consequently, the Tribunal concluded that, on balance, the circumstances warranted setting aside the cancellation decision. The Tribunal substituted a decision not to cancel the applicant's Subclass 500 (Student) visa.