Akhlaq (Migration)

This matter concerned an appeal against the cancellation of the applicant's Subclass 500 (Student) visa. The dispute arose because the applicant had breached a condition of his visa by failing to maintain enrolment in a full-time registered course, specifically due to non-payment of tuition fees. The applicant was not enrolled in a full-time registered course for a prolonged period, and the Tribunal found that his circumstances were not beyond his control, nor did he have a compelling need to remain in Australia. The decision under review was affirmed by the Tribunal.

The legal issues before the Tribunal were whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was established, and if so, whether the discretion to cancel the visa should be exercised. Section 116(1)(b) permits the Minister to cancel a visa if the holder does not comply with a condition of their visa. In this case, the relevant condition was 8202(2)(a), which requires a student visa holder to be enrolled in a full-time registered course.

The Tribunal reasoned that the applicant had indeed breached condition 8202(2)(a) as his enrolment in an MBA course was cancelled on 3 November 2017 due to non-payment of tuition fees, a fact acknowledged by the applicant. As this ground did not mandate cancellation under section 116(3), the Tribunal proceeded to consider the exercise of discretion. The Tribunal had regard to the applicant's stated reasons for undertaking a second Master's degree, his financial difficulties, and the purported financial support from a relative. However, the Tribunal found that the applicant's explanations for needing another MBA and the timing of his request for financial assistance were unconvincing. The Tribunal concluded that the circumstances did not warrant a decision against cancellation.

Consequently, the Tribunal affirmed the decision to cancel the applicant's Subclass 500 (Student) visa.