Jamal-UD-Din (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Student (Temporary) (Class TU) visa (Subclass 500) held by the applicant. The dispute arose because the applicant had ceased enrolment in a higher-level course, leading to a potential breach of visa conditions. The decision was made by Member Vanessa Plain.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202(2)(a) of the Migration Regulations 1994, which requires a student visa holder to be enrolled in a full-time registered course. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa under section 116(1) of the Migration Act 1958.

The Tribunal found that the applicant had not complied with condition 8202(2)(a) as he was not enrolled in a registered course from 8 December 2018. However, in considering the exercise of discretion to cancel the visa, the Tribunal had regard to the applicant's circumstances, including a deferral of his course on compassionate and medical grounds, his return to his home country for treatment, and the subsequent difficulties in re-enrolling. Crucially, the Tribunal considered additional evidence submitted by the applicant, which was not available to the original decision-maker, including medical documents and correspondence with his education provider.

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