Hussain (Migration)

The Administrative Appeals Tribunal considered whether to cancel the Subclass 500 (Student) visa of the applicant, Mr. Hussain. The dispute arose because Mr. Hussain was alleged to have breached condition 8202 of the Migration Regulations 1994 by failing to maintain enrolment in a course at the same or a higher Australian Qualifications Framework (AQF) level as the course for which his visa was granted.

The Tribunal was required to determine whether Mr. Hussain had breached condition 8202(2)(b) of the Regulations, which mandates maintaining enrolment in a registered course at the same or a higher AQF level. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, having regard to the circumstances of the case.

The Tribunal found that Mr. Hussain had indeed breached condition 8202(2)(b) as he had failed to commence his Master of Professional Accounting course and subsequently enrolled in a Diploma of Business, which is at a lower AQF level. However, in exercising its discretion regarding cancellation, the Tribunal considered several factors. These included Mr. Hussain's original intention for his stay, his compelling need to remain in Australia, his compliance with other visa conditions, the hardship that cancellation would cause, and the circumstances leading to the ground for cancellation. The Tribunal noted Mr. Hussain's evidence of study and personal difficulties, his subsequent re-enrolment in a Master of Business Administration course, and the hardship he would face if his visa were cancelled. Despite some inconsistencies in his evidence, the Tribunal gave weight to his explanations and his efforts to rectify the situation.

Consequently, the Tribunal set aside the decision to cancel Mr. Hussain's visa and substituted a decision not to cancel it.