Hamza (Migration)

This matter concerned an appeal by Muhammad Hamza against the cancellation of his Student (Temporary) (Class TU) visa, specifically a 573 Higher Education Sector visa. The Administrative Appeals Tribunal (AAT) was required to determine whether the grounds for cancellation existed and, if so, whether to exercise its discretion to set aside the cancellation decision. The applicant had failed to attend a hearing invitation from the Tribunal and had not been enrolled in a registered course of study, leading to a breach of visa condition 8202.

The primary legal issue before the Tribunal was whether the applicant had failed to comply with condition 8202 of his visa, which mandates enrolment in a registered course of study and satisfactory course progress. The Tribunal also had to consider whether, having found a breach of this condition, it should exercise its discretion to cancel the visa, taking into account the applicant's personal circumstances and submissions. The Tribunal was guided by the Act, Regulations, and the Department's Procedures Advice Manual (PAM3) concerning general visa cancellation powers.

The Tribunal found that the applicant had not complied with condition 8202(2) as he was not enrolled in a registered course of study and had not provided evidence of satisfactory progress. Consequently, the grounds for cancellation of his visa were established. In considering the exercise of discretion, the Tribunal had regard to the applicant's written reasons for not cancelling his visa. These reasons detailed personal struggles including homesickness, a period of absence from studies, financial difficulties stemming from gambling losses, and a desire to re-enrol and complete his studies. Despite these submissions, the Tribunal affirmed the decision to cancel the visa.