Mehmood (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 500 (Student) visa of Mr. Mehmood. The visa was granted on 17 February 2017. The delegate cancelled the visa on the grounds that Mr. Mehmood had breached a condition requiring him to maintain enrolment in a registered course that, upon completion, would provide a qualification at the same or a higher Australian Qualifications Framework (AQF) level than his original course. The central issue was whether this ground for cancellation was established and, if so, whether the visa should be cancelled.

The Tribunal was required to determine if Mr. Mehmood had complied with condition 8202 of his visa, which mandates maintaining enrolment in a registered course at the same or a higher AQF level. The Tribunal also had to consider whether, having found a breach, it should exercise its discretion to cancel the visa, taking into account all relevant circumstances. This involved assessing factors such as the applicant's educational history, the reasons for his non-compliance, the purpose of his stay, the extent of his compliance, the hardship that cancellation might cause, his behaviour towards the Department, and any mandatory legal consequences of cancellation.

The Tribunal found that Mr. Mehmood had indeed breached condition 8202(2)(b) of his visa, as he ceased enrolment in a qualifying course on 25 August 2017. However, in considering the exercise of discretion, the Tribunal gave significant weight to the applicant's personal circumstances. Mr. Mehmood experienced a family bereavement shortly after arriving in Australia, which significantly impacted his ability to concentrate and his emotional state. This, coupled with subsequent financial hardship due to the cessation of family support and initial difficulties adjusting to Australian life and study, were considered reasonable explanations for his academic difficulties. The Tribunal found his account to be candid and sincere, supported by documentary evidence. While acknowledging the breach, the Tribunal concluded that the circumstances leading to it were largely beyond his control and that he had acted reasonably in managing them.

Weighing all the circumstances, including the applicant's desire to complete his master's degree, the moderate psychological and emotional toll cancellation might exact, and his lack of adverse behaviour towards the Department, the Tribunal determined that the visa should not be cancelled. Accordingly, the Tribunal set aside the decision under review and substituted a decision not to cancel Mr. Mehmood's Subclass 500 (Student) visa.