SHAH (Migration)

The Administrative Appeals Tribunal considered the case of Mr. Shah, a holder of a Student (Temporary) (Class TU) visa, subclass 573 (Higher Education Sector). The dispute arose from the cancellation of his visa by the Department on the grounds that he was not enrolled in a registered course, thereby breaching condition 8202 of the Migration Regulations 1994. Mr. Shah sought a review of this decision.

The Tribunal was required to determine whether Mr. Shah had breached condition 8202 of his visa, specifically whether he was enrolled in a registered course. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, taking into account all relevant circumstances, including those that might constitute compelling reasons for Mr. Shah to remain in Australia.

The Tribunal found that Mr. Shah had indeed not been enrolled in a registered course between 29 July 2016 and 18 April 2017, thus establishing a breach of condition 8202(2). However, in exercising its discretion regarding cancellation, the Tribunal considered Mr. Shah's stated purpose of obtaining tertiary qualifications in Australia, his intention to use these qualifications to assist his father's agricultural business in Pakistan, and the extenuating circumstances that led to his non-compliance. These circumstances included financial difficulties experienced by his father and being misguided by education agents. The Tribunal was satisfied, based on documentary evidence and his testimony, that Mr. Shah's father owned the described business and that Mr. Shah had a genuine intention to return to Pakistan to contribute to it.

Consequently, the Tribunal concluded that the circumstances of the case warranted setting aside the decision to cancel Mr. Shah's visa. The Tribunal substituted a decision not to cancel his Subclass 573 visa.