Rahman (Migration)

The Administrative Appeals Tribunal considered the case of Mr. Rahman, a citizen of Pakistan who held a Subclass 500 (Student) visa. The dispute arose when the Department of Home Affairs issued a Notice of Intention to Consider Cancellation (NOICC) for Mr. Rahman's visa, alleging a breach of visa condition 8202, specifically that he was not enrolled in a full-time registered course. The Tribunal was tasked with determining whether Mr. Rahman had indeed breached this condition and, if so, whether the discretion to cancel his visa should be exercised.

The central legal issue was whether Mr. Rahman had complied with condition 8202 of the Migration Regulations 1994, which requires a student visa holder to be enrolled in a full-time registered course, maintain satisfactory course progress and attendance, and pursue a qualification at the same or a higher level than that for which the visa was granted. The Tribunal had to assess the evidence presented by Mr. Rahman in response to the NOICC, which included explanations for his study disruptions, personal difficulties, and eventual re-enrolment.

The Tribunal found that while Mr. Rahman had technically failed to comply with condition 8202 due to a period of non-enrolment, it was not appropriate to cancel his visa. The Tribunal accepted that Mr. Rahman's non-compliance was largely attributable to the significant challenges posed by the COVID-19 pandemic, including difficulties with online study, personal health issues, and family financial impacts. It was noted that Mr. Rahman had made genuine efforts to continue his studies offshore and had subsequently re-enrolled in a new course upon returning to Australia, demonstrating a commitment to his educational goals and his family's investment in his future. The Tribunal concluded that the circumstances warranted setting aside the decision to cancel the visa.

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