Baig (Migration)

The Administrative Appeals Tribunal considered the case of Mr. Baig, who sought review of a decision to cancel his Subclass 500 (Student) visa. The cancellation was based on the applicant's failure to maintain enrolment in a full-time registered course, thereby breaching visa condition 8202. The applicant contended that his non-compliance was due to chronic health problems, including severe depression, anxiety, and stress, exacerbated by the COVID-19 pandemic and difficulties with online study.

The primary legal issue before the Tribunal was whether the discretion to cancel the applicant's visa should be exercised, given the circumstances. While the Tribunal was satisfied that the ground for cancellation existed under section 116(1)(b) of the Migration Act 1958, this ground did not mandate cancellation. Therefore, the Tribunal was required to consider the applicant's submissions and other relevant matters in deciding whether to exercise its discretionary power to cancel the visa.

The Tribunal acknowledged the applicant's reported physical and mental health issues during the period of non-enrolment. However, it found a lack of medical evidence to substantiate the claim that these health issues directly precluded enrolment during that specific period. The Tribunal also noted that the applicant was able to enrol in new courses shortly after being contacted by the Department, despite not seeking medical assistance until after receiving the Notice of Intention to Consider Cancellation. Despite these reservations, the Tribunal concluded that, on balance and considering all circumstances, the visa should not be cancelled.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel Mr. Baig's Subclass 500 (Student) visa.