Merhi (Migration)

The Administrative Appeals Tribunal considered a decision to cancel the Subclass 573 Higher Education Sector visa held by the applicant, Mr. Merhi. The dispute arose because the applicant had ceased his studies and missed the enrolment date for a new college, leading to a finding that he had breached a condition of his visa. The Tribunal, presided over by Member Wendy Banfield, was tasked with determining whether the cancellation of the visa was appropriate.

The primary legal issue before the Tribunal was whether the applicant had breached Condition 8202 of Schedule 8 to 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 under section 116(1) of the Act.

The Tribunal found that the applicant had indeed breached Condition 8202(2) by not being enrolled in a registered course for a period of four months, a fact not disputed by the applicant. However, in considering the discretion to cancel the visa, the Tribunal had regard to several factors. These included the applicant's purpose for being in Australia, which was for study, and his compelling need to remain due to his Australian partner and her pregnancy. The Tribunal also noted the applicant's otherwise good compliance with visa conditions and the significant financial and emotional hardship cancellation would cause him, particularly given his reliance on a poorly advised education agent. Furthermore, the Tribunal considered that the circumstances leading to the non-enrolment, while not entirely beyond the applicant's control, were influenced by external advice and that the period of non-compliance was relatively short.

On balance, the Tribunal concluded that the applicant's student visa should not be cancelled. It set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 573 visa, acknowledging the applicant's credibility, his acceptance of responsibility, and his undertaking to comply with future obligations.