MOHAMMAD (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the applicant's Subclass 573 Higher Education Sector visa. The applicant's visa was cancelled on the grounds that he had not complied with Condition 8202(3)(a) of the Migration Regulations 1994, as his education provider had certified him as not achieving satisfactory course progress. The applicant had failed to achieve satisfactory course progress in a Diploma of Leadership and Management.

The primary legal issue before the Tribunal was whether the applicant had breached Condition 8202 of the Migration Regulations 1994, which requires a student visa holder to maintain satisfactory course progress. If a breach was established, the Tribunal then had to consider whether, in all the circumstances, the applicant's visa should be cancelled under section 116(1) of the Migration Act 1958.

The Tribunal acknowledged that the applicant did not dispute the factual basis for the cancellation, admitting he had failed to achieve satisfactory course progress. However, the applicant provided explanations for his lack of progress, including depression stemming from his mother's serious illness, feelings of isolation, language difficulties, and homesickness. He also stated that he had subsequently re-enrolled and was performing well. Considering these mitigating circumstances, the Tribunal concluded that the visa should not be cancelled. The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's visa.