JAVED (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Subclass 500 (Student) visa was cancelled. The dispute centred on whether the applicant had breached condition 8202 of the Migration Regulations 1994, which mandates enrolment in a registered course and satisfactory course progress and attendance. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa.

The primary legal issue before the Tribunal was whether the applicant had complied with condition 8202 of the Migration Regulations 1994. This condition requires a student visa holder to be enrolled in a registered course and to maintain satisfactory course progress and attendance. The Tribunal also had to determine whether, having found a breach, it should exercise its discretion to cancel the applicant's visa, considering the circumstances presented.

The Tribunal found that the applicant had not complied with condition 8202(2) as he was not enrolled in a registered course at the time of the cancellation decision. However, in considering the exercise of discretion to cancel the visa, the Tribunal had regard to various factors, including the applicant's personal circumstances such as his father's illness and his wife's pregnancy and childbirth, his initial purpose for travelling to Australia to study, and his subsequent efforts to re-enrol in a course. The Tribunal concluded that, on balance, 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 (Student) visa.