Farooq (Migration)

The Administrative Appeals Tribunal considered the case of Mr Farooq, who sought review of the decision to cancel his Subclass 573 Higher Education Sector student visa. The dispute centred on whether Mr Farooq had breached condition 8202 of the Migration Regulations 1994, which requires a student visa holder to be enrolled in a registered course and to maintain satisfactory course progress and attendance.

The primary legal issue before the Tribunal was to determine if Mr Farooq had complied with condition 8202 of his visa. If a breach was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, having regard to the circumstances of the case. The Tribunal also considered information provided in a section 376 Certificate, which related to an anonymous tip-off concerning Mr Farooq's alleged attempts to work without appropriate working rights, and the applicant's explanation for his non-compliance with his study obligations.

The Tribunal found that Mr Farooq had breached condition 8202(2) of his visa, as evidence from the Provider Registration and International Student Management System (PRISMS) indicated he had not been enrolled in a registered course since 2 July 2016. While Mr Farooq conceded the breach and provided personal reasons, including family estrangement due to his sexual orientation and resulting financial difficulties, the Tribunal determined these circumstances did not outweigh the significance of his non-compliance. The Tribunal reasoned that the purpose of the student visa was to undertake study, and Mr Farooq's prolonged non-engagement in study meant he was not fulfilling the purpose of his stay in Australia.

Ultimately, the Tribunal affirmed the decision to cancel Mr Farooq's visa. While acknowledging the seriousness of visa cancellation, the Tribunal concluded that, on balance, the circumstances, particularly the significant breach of the primary visa condition and the absence of compelling reasons for him to remain in Australia, favoured cancellation.