Aloqaily (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Subclass 500 (Student) visa was subject to cancellation. The dispute arose because the applicant had not maintained enrolment in a course at the same or a higher Australian Qualifications Framework (AQF) level as that for which their visa was granted, and had also experienced issues with satisfactory course progress and attendance.

The primary legal issue before the Tribunal was whether the delegate's decision to cancel the applicant's visa was the correct and preferable one, considering the discretion afforded to the decision-maker under the Migration Regulations 1994. This involved assessing whether the applicant had breached the conditions of their visa, specifically concerning their course of study level, and if so, whether there were sufficient mitigating factors to warrant setting aside the cancellation decision.

The Tribunal found that while the applicant had initially enrolled in a course at a lower AQF level than that for which their visa was granted, and had also faced issues with course progress and attendance, there were compelling circumstances that weighed against cancellation. These included the applicant's significant homesickness, their return to their home country, a delay in obtaining a new confirmation of enrolment, and subsequent mental health challenges. Crucially, the applicant had since re-enrolled in a course at the original AQF level at a different institution and was actively studying. The Tribunal concluded that in light of these factors, the discretion to cancel the visa should not be exercised.

The Tribunal set aside the delegate's decision to cancel the applicant's Subclass 500 (Student) visa and substituted a decision not to cancel the visa.