Rafiq (Migration)

The Administrative Appeals Tribunal reviewed a decision by a delegate of the Minister for Home Affairs to cancel Muhammad Qasim Rafiq's Subclass 573 Higher Education Sector Visa. The cancellation was based on the ground that Mr. Rafiq was not enrolled in a registered course of study, a breach of condition 8202 of the Migration Regulations 1994. The primary issue before the Tribunal was to determine whether this ground for cancellation was established and, if so, whether the visa should be cancelled.

The Tribunal was required to ascertain if Mr. Rafiq had complied with condition 8202, which mandates enrolment in a registered or, in limited circumstances, a full-time course of study or training. The delegate's decision noted a lack of enrolment from April 2018, and a notice of intention to consider cancellation was issued in October 2018, to which the applicant did not personally respond. The applicant provided evidence that he had immediately forwarded this notice, along with medical documentation concerning his mental health issues at the time, to his migration agent for action.

The Tribunal found that the applicant had acted in good faith by seeking assistance from his migration agent and providing the necessary information. It was evident that the applicant was experiencing significant mental health issues, which impacted his ability to personally manage the response to the cancellation notice. The Tribunal concluded that the migration agent failed to act on the applicant's behalf, despite assurances that they would handle the matter with the delegate and submit the medical evidence. This failure meant the delegate did not have the benefit of considering the applicant's circumstances, including his health issues and the role of his agent, when making the cancellation decision. Consequently, the Tribunal set aside the decision to cancel the applicant's visa.