Patturi (Migration)

This matter concerned an appeal by the applicant against the cancellation of his Subclass 500 (Student) visa. The cancellation was based on the ground that the applicant was not enrolled in a registered course at the required Australian Qualifications Framework (AQF) level, specifically failing to maintain enrolment in a course at AQF level 9 or above after his Master of Computer Science enrolment was cancelled. The applicant acknowledged that the ground for cancellation existed.

The primary legal issues before the Tribunal were whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was established, and if so, whether the Minister's discretion to cancel the visa should be exercised in the applicant's favour. The Tribunal was required to consider all relevant circumstances, including matters raised by the applicant concerning his personal circumstances and the Department's Procedures Advice Manual.

The Tribunal found that the ground for cancellation was established, as the applicant had failed to maintain enrolment in a registered course at the required AQF level from 30 July 2018 until 3 December 2019. In considering the exercise of discretion, the Tribunal noted the applicant's submissions regarding his initial enrolment being his parents' desire, his failure in subjects, and subsequent depression. However, the Tribunal found that the applicant had provided no corroborating evidence, such as medical documents, to support his claims of depression or seeking counselling. The Tribunal concluded that while life stressors are common for student visa holders, the applicant had not demonstrated a clinically diagnosable mental health condition that would excuse his failure to comply with visa conditions. The Tribunal emphasised that it is the applicant's responsibility to ensure compliance with visa conditions, and that the applicant had opportunities to make enquiries, particularly after receiving a Notice of Intention to Consider Cancellation.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's visa, finding that despite acknowledging the applicant's remorse, it did not constitute an acceptable explanation for the breach of his visa conditions.