Fonseka (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Subclass 500 (Student) visa held by the applicant, Mr. Fonseka. The dispute arose because the applicant failed to comply with condition 8202 of his visa, which mandates enrolment in a full-time registered course of study. The Minister had decided to cancel the visa on this ground, and the applicant sought review of that decision.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was established, and if so, whether the discretion to cancel the visa should be exercised. Specifically, the Tribunal had to assess if the applicant had complied with visa condition 8202, which required him to be enrolled in a full-time registered course of study. If the ground for cancellation was found to exist, the Tribunal then had to consider all relevant circumstances, including government policy and the applicant's submissions, in deciding whether to affirm the cancellation.

The Tribunal found that the applicant had not complied with condition 8202, as he conceded he was not enrolled in a registered course of study at the time of the notice of intention to cancel and had not been enrolled since September 2017. The applicant's PRISMS records corroborated this. While the ground for cancellation did not mandate cancellation under section 116(3), the Tribunal proceeded to consider the exercise of discretion. The applicant presented several reasons for his non-compliance, including academic difficulty, illness, research into alternative courses, and a lack of intentional breach. However, the Tribunal questioned the applicant's stated intentions and the purpose of his continued stay in Australia, noting his existing postgraduate qualifications and prolonged period of study overseas.

Ultimately, the Tribunal concluded that, considering all the circumstances, the visa should be cancelled. Accordingly, the Tribunal affirmed the decision to cancel the applicant's Subclass 500 (Student) visa.