Mohammed (Migration)

This matter concerned the review of a decision by the Minister to cancel the applicant's Subclass 500 (Student) visa. The applicant had arrived in Australia at the age of 18 and was enrolled in a Bachelor of Accounting. However, this enrolment ceased on 23 March 2018, and the applicant remained in Australia without being enrolled in a full-time registered course of study until the visa cancellation on 6 September 2019. The applicant acknowledged that grounds for cancellation existed.

The primary legal issue before the Tribunal was whether the Minister's decision to cancel the applicant's visa was justified, considering both the existence of a ground for cancellation and the exercise of discretion. Specifically, the Tribunal had to determine if the applicant had breached a condition of their visa, namely condition 8202, which requires a student visa holder to be enrolled in a registered course and maintain satisfactory course progress and attendance. The Tribunal also considered whether, in light of the circumstances, the cancellation of the visa was appropriate.

The Tribunal found that the ground for cancellation under section 116(1)(b) of the Act was established, as the applicant had failed to comply with visa condition 8202 by not being enrolled in a full-time registered course of study after 23 March 2018. The applicant had also enrolled in a Diploma of Leadership and Management in August 2019 but stated he did not study it, instead working and then waiting for the hearing without undertaking any study. The Tribunal considered that a genuine student visa holder would prioritise study over work and take positive steps to achieve their proposed educational qualification, even while awaiting a review hearing. The applicant's lack of study and failure to progress in any course raised concerns about his true intentions for remaining in Australia.

Consequently, the Tribunal affirmed the decision to cancel the applicant's Subclass 500 (Student) visa, finding that the circumstances did not warrant the exercise of discretion to remit the cancellation.