Mirza (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Subclass 500 (Student) visa. The applicant, a 32-year-old male from India, had been granted the visa on 7 May 2021. The Department of Home Affairs issued a Notice of Intention to Consider Cancellation on 6 July 2022, to which the applicant responded with reasons why his visa should not be cancelled. The review was heard by Senior Member Rachel Westaway of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (Cth), which requires a student visa holder to be enrolled in a full-time registered course of study. 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 applicant contended that a range of personal circumstances, including his wife's pregnancy complications and the birth of twins, the COVID-19 pandemic, lockdowns, travel restrictions, financial stress, and his own health issues, had prevented him from maintaining full-time enrolment.

The Tribunal found that the applicant had, on his own admission, not been enrolled in a full-time registered course, thus breaching condition 8202(2)(a). However, in considering the exercise of discretion to cancel the visa, the Tribunal had regard to the applicant's circumstances. These included his genuine intention to study in Australia since 2013, his prior completion of a Master's degree, his efforts to gain employment and further qualifications, and the significant personal and family challenges he faced, which were supported by documentary evidence. The Tribunal concluded that, in light of these circumstances, the visa should not be cancelled.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 500 (Student) visa. The Tribunal noted it had no jurisdiction with respect to the other applicant mentioned in the case.