Enyinnaya (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Subclass 500 (Student) visa held by the applicant, Mr Enyinnaya. The dispute arose because the applicant was not enrolled in a registered course of study, which constituted a breach of his visa conditions. The Tribunal was required to determine whether the ground for cancellation existed and, if so, whether to exercise its discretion to cancel the visa.

The Tribunal first addressed whether the ground for cancellation under s 116(1)(b) of the Migration Act 1958 (Cth) was made out. This required determining if the applicant had complied with a condition of his visa, specifically condition 8202(2)(a), which mandates enrolment in a full-time registered course. The applicant admitted he had not been enrolled in any course since 30 August 2017 and understood this was a breach of his visa conditions. His enrolment record confirmed this, showing his last enrolment was cancelled for non-commencement of studies.

Having established that the ground for cancellation existed, the Tribunal then considered the exercise of discretion. The applicant argued he was motivated and had made progress, attributing his poor academic record and non-attendance to his wife's pregnancy and illness. He provided certificates and course materials as evidence. However, the Tribunal found that while the applicant may have attended some classes and made some progress, this was insufficient to demonstrate an ability to complete his intended studies. The applicant's enrolment history showed multiple cancellations, inactivity, and expired courses, alongside documented warnings for non-attendance, poor academic performance, and failure to pay fees.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's visa, concluding that, considering all circumstances, cancellation was warranted.