Patel (Migration)

The case concerned a first applicant, a holder of a Subclass 500 (Student) visa, whose visa was cancelled by the Department. The applicant sought review of this decision before the Tribunal. The Tribunal was also presented with a second applicant, but ultimately found it had no jurisdiction concerning that individual.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of Schedule 8 to the Migration Regulations 1994, which requires a student visa holder to be enrolled in a full-time registered course and to maintain satisfactory course progress and attendance. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa.

The Tribunal found that the applicant had not complied with condition 8202(2) as, at the relevant time, he was not enrolled in a registered course. However, in considering the exercise of its discretion to cancel the visa, the Tribunal had regard to the applicant's compelling reasons for studying in Australia, including his desire to obtain a world-recognised qualification and his genuine intention to complete his Masters degree. The Tribunal also took into account the circumstances that led to the non-compliance, including his father's illness which necessitated his return to India, his marriage, and the associated stress and financial implications.

Ultimately, the Tribunal concluded that, considering all the circumstances, the visa should not be cancelled. The decision under review was set aside, and a decision was substituted not to cancel the first applicant's Subclass 500 (Student) visa.