Hussain (Migration)

This matter concerned an appeal by an applicant against the cancellation of their Student (Temporary) (Class TU) visa, subclass 500. The applicant’s visa was cancelled on the grounds that they had breached condition 8202 of the Migration Regulations 1994. The applicant conceded that they were in breach of this condition. The Administrative Appeals Tribunal was required to determine whether the applicant had complied with condition 8202 and, if not, whether the discretion to cancel the visa should be exercised.

The primary legal issue was whether the applicant had breached condition 8202 of the Migration Regulations 1994, which requires a student visa holder to be enrolled in a full-time registered course at the same or a higher Australian Qualifications Framework (AQF) level as the course for which the visa was granted. The applicant’s initial enrolment in a Master of Professional Accounting course was cancelled due to non-commencement. Subsequently, the applicant enrolled in a Diploma of Business, which was at a lower AQF level. The Tribunal also considered whether the circumstances leading to the breach, including the applicant's claims of depression due to his father's illness and reliance on an education agent, were beyond his control, thereby impacting the exercise of discretion to cancel the visa.

The Tribunal found that the applicant had breached condition 8202(2)(a) by not being enrolled in a full-time registered course at the appropriate AQF level. The Tribunal was not satisfied that the applicant's depression prevented him from complying with his visa conditions, noting a lack of objective medical evidence and the applicant's failure to seek a deferral or contact his education provider. The Tribunal concluded that the circumstances leading to the breach were not beyond the applicant's control, as he could have taken steps to mitigate the issue. After considering various factors, including the purpose of the visa, the extent of non-compliance, potential hardship, and mandatory legal consequences, the Tribunal affirmed the decision to cancel the applicant's visa.