Dewanjee (Migration)

The Administrative Appeals Tribunal considered a decision to cancel the Subclass 573 Higher Education Sector visa of the applicant, Mr. Dewanjee. The dispute arose because the applicant was not enrolled in a registered course of study for a period of over eight months, which constituted a breach of condition 8202 of the Migration Regulations 1994. The Tribunal was required to determine whether the applicant had complied with condition 8202 and, if not, whether the discretion to cancel the visa should be exercised.

The Tribunal found that the applicant had indeed breached condition 8202(2) of the Migration Regulations 1994 by failing to be enrolled in a registered course between July 2016 and March 2017. However, the Tribunal then considered the exercise of discretion regarding the cancellation of the visa. It had regard to the applicant's circumstances, including his long history of study in Australia since 2007, his substantial completion of a Master of Business Administration, and his stated intention to return to Bangladesh upon completion of his studies to join his wife. The Tribunal also took into account the applicant's explanations for his academic difficulties and enrolment gaps, which included family medical issues, bereavement, and his sister's serious illness, all of which caused him significant distress and required him to return to Bangladesh.

Considering the totality of the circumstances, including the applicant's diligent study record over many years and the compelling personal reasons for his non-compliance, the Tribunal concluded that the visa should not be cancelled. Accordingly, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's visa.