Habib (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Higher Education Sector visa (Subclass 573) was cancelled. The dispute arose because the applicant was alleged to have breached condition 8202 of the Migration Regulations 1994 by not being enrolled in a registered course of study.

The primary legal issue before the Tribunal was whether the applicant had complied with condition 8202 of Schedule 8 to the Migration Regulations 1994. Specifically, the Tribunal had to determine if the applicant was enrolled in a registered course, had achieved satisfactory course progress, and had maintained satisfactory course attendance, as required by the visa conditions. If a breach was found, the Tribunal also had to consider whether to exercise its discretion to cancel the visa under section 116(1) of the Migration Act 1958.

The Tribunal found that the applicant had not complied with condition 8202(2)(a) as there was no evidence before it that the applicant was enrolled in a registered course of study. While the applicant provided reasons for his non-compliance, including family hardship and personal issues, and expressed a desire to re-enrol, the Tribunal was not satisfied that his present intention was for study. The Tribunal noted a lack of evidence demonstrating material efforts to further his studies or that his family's circumstances had significantly changed. Consequently, the Tribunal affirmed the decision to cancel the applicant's visa.