Ikufu (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 500 (Student) visa of the applicant, Mr. Ikufu. The dispute arose because the applicant was not enrolled in a full-time registered course of study, which constituted a breach of condition 8202 of the Migration Regulations 1994. The Tribunal considered the evidence presented by both the applicant and the Department regarding the applicant's enrolment status and his reasons for remaining in Australia.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of the Migration Regulations 1994, which mandates enrolment in a full-time registered course and maintenance of enrolment in a course leading to a qualification at the same or higher level than that for which the visa was granted. 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 the applicant had indeed not complied with condition 8202(2)(a) as he was not enrolled in a full-time registered course from 10 July 2019. However, in considering the exercise of discretion, the Tribunal took into account the applicant's stated purpose of remaining in Australia to obtain internationally recognised qualifications, his multiple attempts to rectify his enrolment status, and his explanation for the non-payment of fees, which related to his mother's employment issues. The Tribunal also noted the applicant's intention to re-enrol in his Bachelor of Education course and his efforts to secure sufficient funds.

Consequently, the Tribunal concluded that, on the totality of the circumstances, the visa should not be cancelled. The decision under review was set aside, and a substituted decision was made not to cancel the applicant's Subclass 500 visa.