Bhuiyan (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Subclass 500 (Student) visa held by Mr. Bhuiyan. The Minister had cancelled the visa on the grounds that Mr. Bhuiyan was not enrolled in a registered course of study, a breach of visa condition 8202. Mr. Bhuiyan accepted that the ground for cancellation existed, but argued against the exercise of the discretion to cancel his visa.

The primary legal issue before the Tribunal was whether, having established a ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth), the Minister's discretion to cancel the visa should be exercised. This required the Tribunal to consider all relevant circumstances, including matters raised by the applicant and those outlined in the Department's Procedures Advice Manual concerning general visa cancellation powers. The Tribunal was tasked with weighing factors for and against cancellation.

The Tribunal reasoned that while Mr. Bhuiyan had indeed failed to maintain enrolment in a full-time registered course between March 2018 and July 2019, this did not mandate cancellation as it was not a ground for mandatory cancellation under section 116(3). The Tribunal considered Mr. Bhuiyan's stated intention to complete his studies and return to Bangladesh, his father's serious health and financial difficulties which impacted his ability to pay tuition fees, and evidence of Mr. Bhuiyan's own depressive and anxiety symptoms stemming from these circumstances. Although the timing of the submission of the psychological report was noted with concern, the Tribunal accepted that Mr. Bhuiyan had experienced mental health difficulties. Balancing these factors, the Tribunal concluded that the decision to cancel the visa should be set aside.

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