Mohammadhu Rinsan (Migration)

This matter concerned an application by Mohammadhu Rinsan to review the cancellation of his Subclass 500 (Student) visa. The applicant had been granted the visa to undertake a Diploma of Information Technology and a Bachelor of Networking, both AQF level 7 courses. The dispute arose when the applicant’s enrolment in the Bachelor of Networking was cancelled, and he subsequently enrolled in vocational courses at AQF level 5. The decision under review was made by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202(2)(b) of the Migration Regulations 1994, which requires a student visa holder to maintain enrolment in a registered course that, upon completion, provides a qualification at the same or a higher Australian Qualifications Framework (AQF) level than the course for which the visa was granted. If a breach was found, the Tribunal also had to consider whether to exercise its discretion to cancel the visa under section 116(1) of the Migration Act 1958.

The Tribunal found that the applicant had indeed breached condition 8202(2)(b) by enrolling in AQF level 5 courses after his AQF level 7 course was cancelled. However, the Tribunal considered the compelling circumstances surrounding the breach, including significant family bereavements in Sri Lanka and subsequent medical issues, which caused the applicant considerable distress and distraction from his studies. The Tribunal noted the applicant's attempts to defer and re-enrol in appropriate courses, his candid admission of the breach, and the significant emotional and psychological hardship he would face if forced to return to Sri Lanka without completing his studies. Applying the principles of discretion, the Tribunal weighed these factors against the breach and concluded that the visa should not be cancelled.

Consequently, the Tribunal set aside the decision to cancel the applicant’s visa and substituted a decision not to cancel his Subclass 500 student visa.