Mohammed (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Student (Temporary) (Class TU) visa, subclass 500. The applicant, a holder of a student visa, was alleged to have breached condition 8202 of the Migration Regulations 1994 (Cth) by failing to maintain enrolment in a full-time registered course. The Administrative Appeals Tribunal (Cth) was required to determine whether the applicant had breached this condition and, if so, whether to exercise its discretion to cancel the visa.

The central legal issue was whether the applicant's enrolment status constituted a breach of condition 8202(2)(a) of the Migration Regulations 1994, which mandates that a student visa holder must be enrolled in a full-time registered course. The Tribunal also considered whether any breach occurred in circumstances beyond the applicant's control and whether there were compelling reasons to allow the applicant to remain in Australia, which would inform the exercise of the Tribunal's discretion to affirm or set aside the cancellation decision.

The Tribunal found that the applicant had breached condition 8202(2)(a) as their enrolment in a registered course had been cancelled on 28 August 2019 and they did not re-enrol until 7 December 2021, creating a period of over two years where they were not enrolled in a full-time registered course. While the applicant provided reasons for this period of non-enrolment, including a shoulder injury and the impact of the COVID-19 pandemic, the Tribunal concluded that these circumstances did not constitute a compelling need to remain in Australia or that the breach occurred in circumstances beyond the applicant's control. The Tribunal acknowledged the significance of visa cancellation but, on balance, affirmed the decision to cancel the applicant's visa.