Haider (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 573 (Higher Education Sector) student visa held by the applicant, Mr. Haider. The cancellation was based on the ground that the applicant was not enrolled in a registered course between 7 April 2017 and 9 October 2017, a breach of condition 8202 of the Migration Regulations 1994. The applicant sought to have this cancellation decision set aside.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of his visa, and if so, whether the discretion to cancel the visa should be exercised in his favour. Condition 8202 requires a student visa holder to be enrolled in a registered course and to maintain satisfactory course progress and attendance. The Tribunal was required to consider the circumstances surrounding the alleged breach and the applicant's personal circumstances in determining whether to uphold the cancellation.

The Tribunal found that while the applicant had indeed not been enrolled in a registered course during the specified period, this breach occurred due to a confluence of factors. The applicant experienced a period of significant ill health, which prevented him from attending classes and making timely tuition payments. He had been paying his fees via a weekly instalment plan, and his illness caused him to miss some payments. Upon recovering, he discovered he had missed the enrolment cut-off date for the current term. The Tribunal accepted the applicant's evidence as credible, noting his frankness and consistency under questioning. It also considered the significant hardship the applicant would face if his visa were cancelled, including the financial sacrifice made by his parents, the embarrassment within his community and to his fiancée's family, and the fact that he had only approximately 12 months of study remaining to complete his Bachelor of Accounting degree, which would significantly enhance his future employment prospects in Pakistan.

Given these circumstances, the Tribunal concluded that the discretion to cancel the visa should not be exercised. The decision under review was set aside, and a substitute decision was made not to cancel the applicant's visa.