Hussain (Migration)

This matter concerned an appeal by an applicant against the cancellation of their Student (Temporary) (Class TU) visa, subclass 573 (Higher Education Sector). The visa was cancelled by a delegate of the Minister on the grounds that the applicant was not, or was not likely to be, a genuine student. The applicant had not responded to the Notice of Intention to Consider Cancellation. The Tribunal was required to determine whether the delegate's decision to cancel the visa was correct.

The legal issues before the Tribunal included whether the applicant had failed to meet the requirements of being a genuine student, as evidenced by non-commencement of courses, changes in course enrolment, non-payment of fees, low attendance, and cancellation of enrolment. The Tribunal also had to consider the applicant's explanation for these issues, which included the death of a grandfather, mental health struggles, victimisation by fraud, incorrect migration and education advice, and relationship issues. The Tribunal was required to assess whether these circumstances constituted compassionate and compelling reasons that explained the applicant's academic and enrolment difficulties.

The Tribunal found that while the delegate had identified valid grounds for concern regarding the applicant's academic progress and enrolment status, the delegate had not adequately considered the full range of evidence presented by the applicant. The Tribunal noted that the applicant had provided evidence of significant personal difficulties, including the death of a close family member shortly after arriving in Australia and subsequent mental health issues, which impacted their ability to study. Furthermore, the Tribunal considered that the applicant had been granted a deferral of study due to these circumstances, although they were not formally informed of this. The Tribunal also took into account the applicant's subsequent re-enrolment in a Bachelor of Accounting course and provided evidence of fee payment and enrolment confirmation, indicating a renewed intention to study. The Tribunal concluded that, in light of all the circumstances, the decision to cancel the visa should be set aside.