HOSSAIN (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the visa of Mr. Hossain, a student visa holder. The dispute centred on whether Mr. Hossain had breached condition 8202 of the Migration Regulations 1994, which requires a student visa holder to be enrolled in a registered course. The delegate had cancelled Mr. Hossain's visa on the basis that he was not enrolled in a registered course between August 2016 and March 2017.

The Tribunal was required to determine two key issues: first, whether Mr. Hossain had complied with condition 8202 of his visa, and second, if a breach had occurred, whether the discretion to cancel his visa should be exercised. Mr. Hossain conceded that he was not enrolled in a registered course during the specified period, thus admitting a breach of condition 8202(2). The central question then became whether, despite this breach, the visa cancellation decision should be set aside.

In considering the discretion to cancel the visa, the Tribunal had regard to the purpose of a student visa, which is to enable study in Australia. Mr. Hossain had a long history of study in Australia since 2009, completing multiple qualifications and being close to completing further postgraduate studies. The Tribunal accepted that his studies were interrupted due to his mother's chronic illness, which had a significant psychological impact, making it difficult for him to focus. While he did not formally defer his studies, he encountered difficulties re-enrolling due to provider capacity and subsequently sought alternative enrolment. The Tribunal noted his commitment to his studies, his plans to establish a business in his home country upon completion, and his re-engagement with his course.

The Tribunal concluded that, considering all the circumstances, including the applicant's long and generally satisfactory academic record, the impact of his mother's illness, his efforts to re-enrol, and his current progress towards completing his studies, the decision to cancel his visa should be set aside. The Tribunal substituted a decision not to cancel Mr. Hossain's Subclass 573 Higher Education Sector visa.