ABEDALQADER (Migration)

This matter concerned an application for review of a decision to cancel the visa of Mr ABEDALQADER, the holder of a Student (Temporary) (Class TU) Subclass 573 Higher Education Sector visa. The dispute arose because the applicant was no longer enrolled in a higher education course, and his course had been cancelled. The decision under review was made by the delegate of the Minister, and the application for review was heard by the Tribunal.

The legal issues before the Tribunal were whether the applicant had breached condition 8516 of the Migration Regulations 1994, which requires a visa holder to continue to satisfy the criteria for the grant of their visa, and if so, whether the Minister's discretion to cancel the visa should be exercised. Specifically, the Tribunal had to determine if the applicant's enrolment status meant he no longer satisfied the primary criteria for his Subclass 573 visa, thereby constituting a breach of condition 8516.

The Tribunal found that the ground for cancellation under s 116(1)(b) of the Act did exist, as the applicant had not maintained enrolment in a principal course of study for the Subclass 573 visa for a period. However, the Tribunal then considered the exercise of discretion regarding cancellation. It had regard to the applicant's purpose of travel and stay in Australia, noting that he had diligently completed English courses, enrolled in a Master's degree, and successfully completed his studies. The Tribunal considered the applicant's efforts to secure suitable enrolment after his original course was discontinued as indicative of his genuine intention to study. The Tribunal also gave little negative weight to the period of non-compliance with condition 8516, characterising it as a situation of unfortunate circumstance and bureaucracy, and noted no other visa conditions had been breached.

Ultimately, the Tribunal concluded that, considering all the circumstances, the visa should not be cancelled. The Tribunal set aside the delegate's decision and substituted a decision not to cancel the applicant's Subclass 573 visa.