Mohammed (Migration)

This matter concerned an appeal by an applicant against the cancellation of his Subclass 500 (Student) visa. The visa was cancelled on the grounds that the applicant had breached condition 8202(2)(a) of the Migration Regulations 1994 by not being enrolled in a full-time registered course. The applicant argued that there were compelling reasons for his breach and that the discretion to cancel his visa should not be exercised. The decision was made by Vanessa Plain, a Member of the Tribunal.

The primary legal issue before the Tribunal was whether the applicant had failed to comply with condition 8202(2)(a) of his student visa, which requires enrolment in a full-time registered course. If a breach was found, the Tribunal then had to consider whether, in the exercise of its discretion, the cancellation of the visa should be set aside, having regard to the circumstances of the case.

The Tribunal found that the applicant had indeed failed to maintain enrolment in a registered course of study between 30 May 2019 and 11 March 2020, thus breaching condition 8202(2)(a). However, the Tribunal carefully considered the applicant's explanation for this breach, which involved being a victim of educational scams by his agent in India, subsequent family illness and financial hardship, and the need to rectify his enrolment. The Tribunal found the applicant to be a credible witness, whose extensive evidence, supported by contemporaneous documents, provided compelling reasons for the non-compliance. The Tribunal concluded that, in light of these circumstances, the discretion to cancel the visa should not be exercised.

Consequently, the Tribunal set aside the decision to cancel the applicant's Subclass 500 (Student) visa and substituted a decision not to cancel it.