Hussain (Migration)

This matter concerned an appeal by the applicant, Mr. Hussain, against the Minister's decision to cancel his Subclass 500 (Student) visa. The cancellation was based on the Minister's satisfaction that Mr. Hussain was not a genuine student, pursuant to section 116(1)(fa)(i) of the Migration Act 1958 (Cth). The Tribunal, presided over by Ms. Vanessa Plain, was required to determine whether the ground for cancellation existed.

The primary legal issue before the Tribunal was whether the applicant was a "genuine student" as required by his visa conditions. This involved assessing whether his temporary non-enrolment in a registered course for a period of nine months, despite multiple course enrolments, was due to circumstances that would lead to the conclusion that he was not a genuine student. The Tribunal also considered the prescribed matters under section 116(1A) and regulation 2.43 of the Migration Regulations 1994, which relate to the deferral or suspension of a course of study.

The Tribunal found that the applicant had not admitted to not being a genuine student and had expressed distress when attempting to explain his situation. The Tribunal considered medical evidence and academic results, concluding that the applicant's circumstances, including mental health issues, were beyond his control and constituted compassionate or compelling circumstances. Crucially, the Tribunal was not satisfied that the applicant's temporary non-enrolment fell within the grounds specified in regulation 2.43(1D) that would justify cancellation, such as being due to his conduct, non-compassionate circumstances, or fraudulent misrepresentation.

Consequently, the Tribunal determined that the ground for cancellation under section 116(1)(fa)(i) was not made out. The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 500 (Student) visa.