Shaikh (Migration)

This matter concerned an application by Mr. Shaikh (the applicant) to review the decision to cancel his Subclass 500 (Student) visa. The applicant, an Indian national, had been granted the visa to undertake a Master's degree in Hotel Management. The cancellation was based on the applicant's alleged breach of condition 8202 of the Migration Regulations 1994, specifically that he was not enrolled in a registered course.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of the Migration Regulations 1994, and if so, whether the discretion to cancel his visa should be exercised. Condition 8202 requires a student visa holder to maintain enrolment in a registered course that will lead to a qualification at the same or a higher level than that for which the visa was granted. The Tribunal was required to consider the applicant's circumstances, including the reasons for his cessation of studies and any compelling need to remain in Australia.

The Tribunal found that the applicant had indeed breached condition 8202, as he had not been enrolled in a registered course at the Master's degree level or higher since January 2018. However, the Tribunal then considered the exercise of discretion regarding visa cancellation. The applicant provided evidence that he had stopped attending his course due to the death of a relative in Australia, which necessitated him returning the body to India at significant personal expense. He also faced financial difficulties upon his return, preventing him from paying tuition fees. The Tribunal concluded that these circumstances created a compelling need for the applicant to remain in Australia to complete his studies, and therefore, the discretion to cancel the visa should not be exercised.

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