Bairy (Migration)

This matter concerned an application for review of a decision by a delegate of the Minister for Home Affairs to cancel Mr Bairy's subclass 500 student visa. The cancellation was based on the applicant's alleged failure to maintain enrolment in a registered course of study, thereby breaching condition 8202 of the Migration Regulations 1994. The applicant sought review of this decision before the Tribunal.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202, which requires a student visa holder to be enrolled in a registered course of study or training. If this breach was established, the Tribunal then had to consider whether the visa should be cancelled under section 116(1)(b) of the Migration Act 1958. The applicant's response to the notice of intention to cancel his visa, and his oral evidence, were central to these determinations.

The Tribunal found that the applicant had not complied with condition 8202(2) as he was not enrolled in a registered course from 6 December 2018 onwards. However, the Tribunal also noted the applicant's explanation for this non-compliance, which included the breakdown of a serious relationship, resulting in severe depression and an inability to concentrate on his studies. The applicant claimed he was unaware of his enrolment cancellation until he attempted to re-enrol several months later. Despite acknowledging the breach, the Tribunal ultimately concluded that the decision to cancel the applicant's visa should be set aside.