Aburumman (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Subclass 500 (Student) visa. The applicant had ceased enrolment in a registered course, which constituted a failure to comply with a condition of the visa. The applicant contended that extenuating circumstances, including financial hardship, familial obligations, and the impending birth of a child with his new spouse, justified the non-compliance. The Tribunal was required to determine whether to exercise its discretion to cancel the visa, considering the applicant's character, the reasons for non-compliance, and the best interests of his children.

The Tribunal found that the applicant was of good character, noting the absence of evidence of serious law breaches in Australia or overseas, and his compliance with a Family Court order to support his biological child. While acknowledging the applicant's non-compliance with the enrolment condition, the Tribunal found that extenuating circumstances, including accumulated debt, familial obligations, and the stress of forming a new family, contributed to his situation. The Tribunal did not discern any malice behind the non-compliance, recognising the applicant's understandable urgency to apply for a partner visa and work full-time to prepare for his family's future.

The Tribunal placed particular emphasis on the best interests of the applicant's children, including his biological child from whom he would be separated by international borders if the visa remained cancelled, and his unborn child with his current spouse. The Tribunal accepted that the applicant was determined to re-engage with his studies for his career and family. Ultimately, the Tribunal concluded that the factors favouring the reinstatement of the visa outweighed those favouring cancellation. The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's visa.