Ali (Migration)

This matter concerned an appeal by the applicant, a British national, against the cancellation of his Subclass 500 (Student) visa. The visa was cancelled on the grounds that the applicant was not enrolled in a full-time registered course and had remained unenrolled for a period of 11 months. The applicant contended that he had paid his education consultant, who subsequently failed to pay the college for his enrolment, leading to his unenrolment.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202(2)(a) of the Migration Regulations 1994, which requires a student visa holder to be enrolled in a full-time registered course. If a breach was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa under section 116(1) of the Migration Act 1958.

The Tribunal found that the applicant had not complied with condition 8202(2)(a) as he had remained unenrolled for 11 months due to non-payment of fees. While the applicant attributed this to his consultant's failure to pay the college, the Tribunal noted a lack of evidence, such as receipts or bank statements, to substantiate his claim of payment to the consultant. Furthermore, the Tribunal considered the applicant's stated reason for studying in Australia – that he "liked it" – and his lack of academic achievement or attendance, concluding that he did not have a compelling need to remain in Australia and may not be a genuine student. Consequently, the Tribunal placed no weight in favour of exercising discretion not to cancel the visa.

The Tribunal affirmed the decision to cancel the applicant's visa, finding that the circumstances did not warrant the exercise of discretion to set aside the cancellation.