Mughkerhegl (Migration)

This matter concerned an appeal by an applicant, holding a Subclass 500 (Student) visa, against the cancellation of his visa. The dispute arose because the applicant had ceased enrolment in a registered course of study for a significant period, leading to a breach of condition 8202 of the Migration Regulations 1994. The decision was made by Wendy Banfield, a Member of the Tribunal.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of his student visa, which requires the holder to be enrolled in a full-time registered course and maintain satisfactory academic progress. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, having regard to various factors including the purpose of the applicant's stay, any compelling need to remain in Australia, the extent of compliance with visa conditions, and the degree of hardship that cancellation might cause.

The Tribunal found that the applicant had indeed failed to comply with condition 8202(2)(a) by not being enrolled in a full-time registered course between February 2021 and August 2022. However, in considering the exercise of its discretion, the Tribunal noted that the applicant had since re-enrolled in an undergraduate degree and demonstrated the capacity to make academic progress. While the Tribunal was not persuaded that the applicant had a compelling need to remain in Australia, it acknowledged his difficulties in re-enrolling due to his past study history and the impact of the COVID-19 pandemic. The Tribunal concluded that, on balance, the applicant's subsequent behaviour and demonstrated capacity to study provided sufficient reason not to cancel his visa.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 500 (Student) visa, allowing him the opportunity to complete his bachelor's degree.