ATIF (Migration)

This matter concerned an appeal by ATIF (the applicant) against the cancellation of his Subclass 573 (Higher Education Sector) student visa. The applicant's visa was cancelled by the delegate on the basis that he had failed to comply with a condition of his visa, specifically condition 8202 of the Migration Regulations 1994, which requires a student visa holder to be enrolled in a registered course and to maintain satisfactory course progress and attendance. The applicant argued that despite his circumstances, he had maintained his enrolment and paid his fees.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 existed, and if so, whether the discretion to cancel the visa should be exercised. This required the Tribunal to determine if the applicant had failed to comply with condition 8202 by not being enrolled in a full-time registered course of study from 4 June 2018 until the cancellation of his visa on 25 March 2019, and to consider all relevant circumstances in exercising the discretion to cancel.

The Tribunal found that the applicant was not enrolled in a full-time registered course of study from 4 June 2018, despite his claims of having paid fees and maintaining enrolment. While acknowledging the applicant's stated mental health issues and family pressures, the Tribunal noted the lack of proactive steps taken by the applicant, such as seeking a deferral or medical assistance, which were inconsistent with the requirements of a student visa holder. The Tribunal concluded that the ground for cancellation existed and, after considering the applicant's stated purpose for his stay and the circumstances surrounding his lack of academic progress and enrolment, exercised its discretion to affirm the cancellation decision.