AHMED (Migration)

The Administrative Appeals Tribunal considered the case of Mr. Ahmed, a holder of a Student (Temporary) (Class TU) Subclass 573 visa. The dispute arose from the cancellation of his visa by the Department of Home Affairs on the grounds that he was not enrolled in a registered course, thereby breaching condition 8202 of the Migration Regulations 1994. The Tribunal was tasked with determining whether Mr. Ahmed had indeed breached this condition and, if so, whether the discretion to cancel his visa should be exercised.

The primary legal issue before the Tribunal was whether Mr. Ahmed had complied with condition 8202 of the Migration Regulations 1994. This condition requires a student visa holder to be enrolled in a registered course and to achieve satisfactory course progress and attendance, as certified by their education provider. The cancellation of Mr. Ahmed's visa was based on the assertion that he was not enrolled in a registered course.

The Tribunal found that Mr. Ahmed had not complied with condition 8202(2) as he was not enrolled in a registered course at the time of the alleged breach. This finding was based on his admission during the hearing and his written response to the Department. However, the Tribunal then considered its discretion to cancel the visa. It took into account the applicant's circumstances, including his purpose for being in Australia, his academic history, and the explanations provided regarding the extension of course durations and his inability to complete assessments due to teacher unavailability. The Tribunal concluded that, considering all the circumstances, the visa should not be cancelled. Consequently, the Tribunal set aside the decision to cancel Mr. Ahmed's visa and substituted a decision not to cancel it.