Awolusi (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 573 Higher Education Sector visa of Mr Awolusi. The dispute arose because Mr Awolusi was not enrolled in a registered course of study, which constituted a breach of his visa condition 8202(2)(a). The Tribunal was required to determine whether the ground for cancellation under s 116(1)(b) of the Migration Act 1958 (Cth) was made out, and if so, whether to exercise its discretion to cancel the visa.

The Tribunal found that Mr Awolusi had indeed breached condition 8202(2)(a) by ceasing to be enrolled in a registered course. However, as this ground did not mandate cancellation, the Tribunal proceeded to consider its discretion. The Tribunal acknowledged the applicant's submission that he had not been afforded procedural fairness by the Department due to confusion surrounding an extension of time to respond to a Notice of Intention to Consider Cancellation. While the Tribunal did not make findings on the Department's procedures, it noted that the applicant's participation in the hearing and provision of a pre-hearing submission addressed any prior procedural issues.

In exercising its discretion, the Tribunal had regard to the circumstances presented, including the applicant's personal difficulties such as depression, his wife's miscarriage, the death of a family member, and financial hardship, which contributed to his inability to defer his studies and his failure to respond to the NOICC within the stipulated timeframe. The Tribunal also considered the potential hardship to his wife and unborn child, and Australia's international obligations under the Convention on the Rights of the Child, particularly the best interests of the child. Weighing all these factors, the Tribunal concluded that the applicant's visa should not be cancelled. The decision under review was set aside, and a decision was substituted to not cancel Mr Awolusi's visa.