Huma (Migration)

This matter concerned an appeal by the applicant, Zill E Huma, against the cancellation of her Subclass 500 (Student) visa. The applicant had been granted the visa on 5 February 2021, but it was subsequently cancelled on 15 May 2023. The dispute arose because the applicant was found not to be enrolled in a registered course, which constituted a breach of condition 8202 of the *Migration Regulations 1994* (Cth). The applicant contended that she had been misadvised by an education agent in Pakistan regarding her course enrolments and visa requirements, and that extenuating circumstances beyond her control had contributed to her non-compliance. The Administrative Appeals Tribunal (AAT) was tasked with determining whether the applicant had breached condition 8202 and, if so, whether the cancellation of her visa was an appropriate exercise of discretion.

The Tribunal was required to consider whether the applicant had complied with condition 8202, which mandates enrolment in a full-time registered course and maintenance of enrolment at a comparable or higher AQF level. The evidence indicated a period of non-enrolment between 13 December 2021 and 5 January 2023, meaning the applicant had not complied with condition 8202(2)(a). Having established a breach, the Tribunal then had to exercise its discretion regarding the cancellation of the visa. In doing so, it was required to consider a range of factors, including the purpose of the applicant's stay, compelling reasons to remain, the extent of compliance, potential hardship, the circumstances of the breach, and whether there were extenuating circumstances beyond the applicant's control.

The Tribunal found that while the applicant had indeed not been enrolled in a full-time registered course, thereby breaching condition 8202(2)(a), the circumstances surrounding this non-compliance warranted setting aside the cancellation decision. The applicant provided evidence of attempts to comply, including multiple PTE test results and unsuccessful applications for further study, and detailed how an education agent's actions and delays led to her predicament. The Tribunal considered these factors, along with the applicant's educational background and her efforts to re-enrol, and concluded that the visa should not be cancelled. Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 500 (Student) visa.