Khamatham (Migration)

This matter concerned an appeal by Mr. Khamatham against the cancellation of his Student (Temporary) (Class TU) visa, subclass 500. The Department of Home Affairs had initiated cancellation proceedings due to Mr. Khamatham's non-compliance with visa condition 8202(2)(a), specifically his failure to maintain enrolment in a registered course. This non-compliance arose from the cancellation of his previous course enrolments due to unsatisfactory academic progress and non-payment of fees.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) existed, and if so, whether the Tribunal should exercise its discretion to cancel the visa. The Tribunal was required to consider the applicant's explanation for his non-compliance, which included the impact of the COVID-19 pandemic on his family's health and financial circumstances, his subsequent mental health struggles, and his need to provide financial support to his family. The Tribunal also had to assess the applicant's efforts to rectify his situation, including obtaining a new enrolment after receiving the notice of intention to cancel.

The Tribunal found that the ground for cancellation under s 116(1)(b) was established, as the applicant had ceased to be enrolled in a registered course. While this ground did not mandate cancellation, the Tribunal then considered whether to exercise its discretion. The Tribunal acknowledged the significant impact of visa cancellation but, after weighing all the circumstances, including the applicant's personal difficulties and his subsequent efforts to re-enrol, concluded that the visa should be cancelled. The Tribunal affirmed the decision to cancel Mr. Khamatham's visa.