2309558 (Migration)

This matter concerned an appeal by a male applicant from Pakistan against the cancellation of his Subclass 500 (Student) visa. The applicant had initially arrived in Australia in May 2017 to undertake a Diploma of [Subject 2] followed by a Bachelor of [Subject 2]. However, he changed his course of study to a Diploma of [Subject 3] at a different institution, which he successfully completed in June 2018. The visa was cancelled on the basis that he was not enrolled in a registered course between 22 June 2018 and 26 August 2018, thereby breaching condition 8202(2) of the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202(2) of his student visa by failing to maintain enrolment in a registered course. If a breach was found, the Tribunal was then required to consider whether, in the exercise of its discretion, the visa should be cancelled, having regard to the circumstances of the case and relevant departmental procedural instructions.

The Tribunal found that the applicant had indeed failed to comply with condition 8202(2) as he was not enrolled in a registered course or held a Confirmation of Enrolment (COE) from 22 June 2018 until 26 August 2018. However, in considering the exercise of discretion to cancel the visa, the Tribunal had regard to the applicant's circumstances. These included his initial difficulties adjusting to life in Australia, experiencing moderate stress, anxiety, and depression, and a period of serious illness and hospitalisation due to a suspected cancerous lump on his neck. The Tribunal also noted his subsequent enrolment in a Bachelor of [Subject 1] course, his payment of fees, and satisfactory course progress.

Ultimately, the Tribunal concluded that, considering the totality of the circumstances, the visa should not be cancelled. The decision under review was set aside, and a substituted decision was made not to cancel the applicant's Subclass 500 (Student) visa.