Motaleb (Migration)

The Administrative Appeals Tribunal considered the case of Mr Motaleb, who sought review of the decision to cancel his Student (Temporary) (Class TU) visa, Subclass 573 (Higher Education Sector). The dispute centred on whether Mr Motaleb had breached a condition of his visa, and if so, whether the discretion to cancel the visa should be exercised.

The primary legal issue before the Tribunal was whether Mr Motaleb had complied with condition 8202 of Schedule 8 to the Migration Regulations 1994. Specifically, the Tribunal had to determine if he was enrolled in a registered course, as required by condition 8202(2). If a breach was found, the Tribunal was then required to consider whether to exercise its discretion under section 116(1) of the Migration Act 1958 to cancel the visa.

The Tribunal found that Mr Motaleb had not disputed that he was not enrolled in a registered course for a nine-month period in 2016, citing personal challenges including mental distress. As non-enrolment constituted a fundamental breach of a student visa condition, the Tribunal then considered the discretion to cancel. While acknowledging Mr Motaleb's stated desire to study and support a friend's disabled uncle, the Tribunal was not satisfied that these constituted compelling reasons to remain in Australia, particularly given his previous unsuccessful application for a Protection Visa and his stated intention to return to Pakistan. The Tribunal concluded that the failure to maintain enrolment was a significant factor weighing against Mr Motaleb.

Consequently, the Tribunal affirmed the decision to cancel Mr Motaleb's visa.