FAHDA (Migration)

The Administrative Appeals Tribunal considered the case of FAHDA, a holder of a Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector visa. The dispute concerned the cancellation of the applicant's visa by the Department of Home Affairs, which the applicant sought to have reviewed by the Tribunal. The primary issue before the Tribunal was whether the applicant had breached condition 8202 of Schedule 8 to the Migration Regulations 1994, which requires a student visa holder to be enrolled in a registered course of study.

The Tribunal was required to determine if the applicant had failed to comply with condition 8202(2) of the Migration Regulations, which mandates enrolment in a registered course. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, taking into account the circumstances of the case. The applicant had provided explanations for his non-enrolment and academic difficulties, including personal issues such as domestic conflict with his aunt and her husband, mental health concerns leading to a diagnosis of Adjustment Disorder with Anxiety, and the death of his grandfather.

The Tribunal found that the applicant had not been enrolled in a registered course of study, thereby breaching condition 8202(2). While acknowledging the applicant's stated personal difficulties and psychological issues, the Tribunal weighed these against the fundamental purpose of the visa, which was to study full-time in a registered course. The Tribunal noted that despite enrolling in several courses since arriving in Australia in 2013, the applicant had not completed any registered courses, with his academic record being generally poor. The Tribunal concluded that the explanations provided, while accepted to some extent, did not outweigh the serious breach of the visa conditions.

Consequently, the Tribunal affirmed the decision to cancel the applicant's visa.