Miring'U (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 500 (Student) visa of the applicant, an individual from Kenya. The dispute arose because the applicant failed to maintain enrolment at the required Australian Qualifications Framework (AQF) level, constituting a ground for cancellation under section 116(1) of the Migration Act 1958 (Cth).

The Tribunal was required to determine whether the applicant had complied with condition 8202(2) of the Migration Regulations 1994, which mandates maintaining enrolment in a registered course that leads to a qualification at the same or a higher AQF level than the course for which the visa was granted. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, taking into account all relevant circumstances.

The Tribunal found that the applicant had indeed not complied with condition 8202(2), as his initial enrolment at Edith Cowan College and University was cancelled due to unsatisfactory academic progress and non-payment of fees. However, the Tribunal carefully considered the applicant's circumstances, including significant challenges such as cultural adjustment difficulties, the death of his father which led to financial instability and emotional distress, and the pressure to return to his family in Kenya. The Tribunal noted that the applicant had subsequently enrolled in and completed an Advanced Diploma of Business and was now enrolled in a Bachelor of Business course, demonstrating a continued intention to study in his chosen field. Weighing these factors, including the applicant's compelling need to return to Kenya to be with his wife and daughter, against the length of the non-compliance, the Tribunal concluded that the discretion should be exercised not to cancel the visa.

Accordingly, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 500 (Student) visa.