Habib (Migration)

This matter concerned an appeal by an applicant against the decision of the Department of Home Affairs to cancel his Student (Temporary) (Class TU) visa, subclass 500. The applicant had been granted the visa on 7 April 2017. The Department issued a Notice of Intention to Consider Cancellation on 31 July 2018, alleging that the applicant had not been enrolled in a registered course of study since 22 August 2017, which constituted a breach of condition 8202 of the Migration Regulations 1994. The applicant did not respond to the notice, and his visa was cancelled on 30 August 2018. The applicant subsequently lodged an application for review with the Tribunal.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of his Student visa, specifically subclauses 8202(2)(a), 8202(3)(a), and 8202(3)(b), which require the holder to be enrolled in a registered course, maintain satisfactory course progress, and achieve satisfactory course attendance. A secondary issue was whether, having found a breach, the Tribunal should exercise its discretion to affirm the cancellation decision, considering the applicant's claims of migration fraud and exceptional circumstances.

The Tribunal found that the applicant had not been enrolled in a registered course of study since 22 August 2017, thereby breaching condition 8202(2)(a). The Tribunal considered the applicant's submissions that he was a victim of migration fraud, alleging that an education agent had facilitated fraudulent enrolment and advised him not to contact the university. However, the Tribunal found the applicant's evidence to be contradictory and unconvincing, particularly regarding his claims about the alleged fraudster and his reasons for not reporting the conduct or returning to Pakistan. The Tribunal concluded that the applicant's non-compliance was not due to circumstances beyond his control and that there were no compelling reasons to depart from the usual consequences of a visa cancellation.

The Tribunal affirmed the decision to cancel the applicant's visa. The Tribunal noted that the cancellation would have legal consequences for the applicant, including becoming an unlawful non-citizen and facing limitations on future visa applications in Australia under section 48 of the Act. The Tribunal found no evidence to suggest that the cancellation would result in the consequential cancellation of another person's visa.