Afzal (Migration)

This matter concerned an application by a student visa holder, Mr Afzal, to review the decision to cancel his Subclass 500 visa. The dispute arose because the applicant had not maintained enrolment in a registered course at the same or a higher Australian Qualifications Framework (AQF) level as the course for which his visa was granted, thereby breaching condition 8202(2)(b) of the Migration Regulations 1994. The decision under review was made by the Administrative Appeals Tribunal (AAT), with Member Vanessa Plain presiding.

The Tribunal was required to determine whether the applicant had breached condition 8202(2)(b) of his student visa. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, taking into account any compassionate and compelling circumstances. The applicant’s visa was granted for study at AQF Level 7, but his enrolment history showed a period of non-compliance with this condition, including enrolment in an AQF Level 5 course and a significant gap in re-enrolment.

The Tribunal found that the applicant had indeed breached condition 8202(2)(b) by not maintaining enrolment in a course at the required AQF level. However, in considering the exercise of discretion regarding cancellation, the Tribunal had regard to significant medical evidence. The applicant had been diagnosed with Febrile Infectious Epilepsy Syndrome, leading to his involuntary hospitalisation and a determination by his treating physicians that he lacked the capacity to care for himself. The hospital had applied for guardianship, and a guardian had been appointed. Given these severe and ongoing medical circumstances, which impacted his capacity to study and manage his affairs, the Tribunal concluded that the visa should not be cancelled.

Consequently, the Tribunal set aside the decision to cancel Mr Afzal's Subclass 500 visa and substituted a decision not to cancel it.