SANGATHALA (Migration)

This matter concerned an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958. The cancellation was based on the applicant’s alleged failure to comply with condition 8202 of Schedule 8 to the Migration Regulations 1994, specifically by not being enrolled in a full-time registered course.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202(2)(a) of the Regulations, which requires a student visa holder to be enrolled in a registered course. If a breach was found, the Tribunal was then required to consider whether to exercise its discretion to cancel the visa, having regard to various factors including government policy guidelines and the circumstances presented by the applicant.

The Tribunal found that the applicant had not been enrolled in a registered course since 21 April 2017, and therefore had not complied with condition 8202(2)(a). However, in considering the exercise of discretion, the Tribunal examined the applicant's explanation for the non-enrolment, which he attributed to an ankle injury requiring travel to India for treatment. Despite initial credibility concerns regarding the applicant's account of the injury and his actions, the Tribunal ultimately concluded that the visa should not be cancelled.

The Tribunal set aside the delegate's decision to cancel the applicant's visa and substituted a decision not to cancel it.