Khan (Migration)

The Administrative Appeals Tribunal considered the case of Mr Khan, a Pakistani national holding a Student (Temporary) (Class TU) visa, Subclass 573 Higher Education Sector. The dispute concerned the cancellation of his visa, which was based on an alleged breach of condition 8202 of the Migration Regulations 1994. The applicant had been enrolled in a Master of Business Administration course at RMIT but had not been enrolled in a registered course for a significant period prior to the notice of intention to cancel his visa.

The primary legal issue before the Tribunal was whether Mr Khan had breached condition 8202 of his visa, specifically subclause (2) which requires the holder to be enrolled in a 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 was required to assess the applicant's circumstances and submissions in determining whether to uphold the cancellation decision.

The Tribunal found that Mr Khan had indeed breached condition 8202(2) as he admitted to not being enrolled in a registered course for approximately nine months. However, in exercising its discretion regarding cancellation, the Tribunal had regard to the compelling circumstances presented by the applicant. These included significant health issues, severe financial difficulties experienced by his parents due to a family legal dispute and political unrest in Pakistan impacting his father's business, and advice received from a course advisor to transfer to a different course. The Tribunal considered the purpose of his stay, the impact of these external factors on his ability to maintain enrolment, and his efforts to seek alternative study arrangements.

Ultimately, the Tribunal concluded that, considering 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 Mr Khan's Subclass 573 visa.