KHALID (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Student (Temporary) (Class TU) visa, Subclass 573 (Higher Education Sector), held by the applicant, Mr. Khalid. The Department of Home Affairs had proposed to cancel the visa on the grounds that the applicant had breached condition 8202 of the Migration Regulations 1994 by not being enrolled in a registered course of study for a significant period. The applicant sought review of this decision.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of the Migration Regulations 1994, which requires a student visa holder to be enrolled in a registered course and to maintain 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, despite the existence of a ground for cancellation under section 116(1) of the Migration Act 1958.

The Tribunal found that the applicant had indeed breached condition 8202(2)(a) by not being enrolled in a registered course for over nine months. However, in exercising its discretion regarding cancellation, the Tribunal gave considerable weight to the applicant's explanation that this non-compliance was likely due to administrative error and miscommunication by his education provider, Edith Cowan University. The Tribunal also considered the significant hardship the applicant would face, including the potential inability to complete his Master of Business Administration degree, which he had almost finished while on a bridging visa.

Ultimately, the Tribunal concluded that the circumstances surrounding the breach, coupled with the undue hardship that cancellation would impose, warranted setting aside the cancellation decision. The Tribunal substituted a decision not to cancel the applicant's visa.