Naveed (Migration)

The Administrative Appeals Tribunal considered the case of Mr Naveed, an applicant for a Student (Temporary) (Class TU) Subclass 500 visa. The dispute arose from the cancellation of Mr Naveed's visa by the Department of Immigration, based on the applicant's alleged failure to comply with condition 8202 of the Migration Regulations 1994, specifically by not being enrolled in a registered course.

The Tribunal was required to determine whether Mr Naveed had breached condition 8202 of his visa. This condition mandates that a student visa holder must be enrolled in a registered course, achieve satisfactory course progress, and maintain satisfactory course attendance. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, having regard to the specific circumstances of the case.

The Tribunal found that Mr Naveed had indeed not been enrolled in a registered course between November 2016 and July 2017, thus technically breaching condition 8202(2). However, the Tribunal exercised its discretion not to cancel the visa. It reasoned that the non-enrolment was due to a genuine error by Mr Naveed's family in making a fee payment, which led to the cancellation of his Confirmation of Enrolment (COE) by his education provider. Mr Naveed had provided evidence of payment and believed his enrolment was reinstated, even attending classes and sitting exams. Crucially, he had completed 80% of his Bachelor of Business (Accounting) degree and was only one semester away from graduation, with a clear intention to return to his home country to work in his father's business. The Tribunal considered these mitigating factors, including the applicant's genuine desire to study and the significant impact cancellation would have on his future, to be compelling reasons not to cancel the visa.

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