HUSSAIN AMJAD (Migration)

This matter concerned an appeal by Mr. Hussain Amjad against the cancellation of his Subclass 500 (Student) visa. The Minister had cancelled the visa under section 116(1)(b) of the Migration Act 1958 (Cth) on the grounds that Mr. Amjad had failed to comply with a condition of his visa, specifically condition 8202, by not being enrolled in a registered course of study or training from 17 August 2017 until 27 July 2018. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether the ground for cancellation existed and, if so, whether to exercise its discretion to cancel the visa.

The Tribunal first considered whether the ground for cancellation was made out. Condition 8202 of the Migration Regulations 1994 requires a student visa holder to be enrolled in a registered course and to maintain satisfactory course progress and attendance. The Tribunal found that Mr. Amjad's enrolment in a Master of Public Health ceased on 17 August 2017, and he was not enrolled in a full-time registered course until 27 July 2018, thus satisfying the ground for cancellation under section 116(1)(b). The Tribunal then turned to consider the exercise of discretion regarding cancellation, noting that this did not involve mandatory cancellation.

In considering the discretion to cancel, the Tribunal had regard to the circumstances of the case, including matters raised by Mr. Amjad and guidance from the Department's Procedures Advice Manual. Mr. Amjad provided evidence of a medical condition, an inguinal hernia causing severe pain, which impacted his ability to attend his English course and subsequently commence his Bachelor's degree. The Tribunal acknowledged the medical certificates and the difficulties Mr. Amjad faced with his course provider, including a lack of accommodation for his medical issues. However, the Tribunal also noted significant inconsistencies and reliability concerns in Mr. Amjad's evidence regarding his IELTS score, the required recovery period for surgery, and a reported assault. Despite these concerns, the Tribunal ultimately concluded that, considering all circumstances, the decision to cancel Mr. Amjad's visa should be set aside.

The Tribunal set aside the decision under review and substituted a decision not to cancel Mr. Amjad's Subclass 500 (Student) visa.