Tamimi (Migration)

The Administrative Appeals Tribunal considered the case of a student visa holder whose visa was cancelled by the Department of Immigration and Border Protection. The applicant, holding a Subclass 573 Higher Education Sector visa, had his visa cancelled on the grounds that he was not enrolled in a registered course of study, thereby breaching condition 8202 of the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of his visa, and if so, whether the discretion to cancel the visa should be exercised. Condition 8202 requires a student visa holder to be enrolled in a registered course and to maintain satisfactory course progress and attendance. The Tribunal was required to determine if the applicant's failure to be enrolled in a registered course since February 2016 constituted a breach, and then to consider the circumstances surrounding this breach and the potential hardship if the visa were cancelled.

The Tribunal found that the applicant had indeed breached condition 8202(2) by not being enrolled in a registered course since February 2016. However, in exercising its discretion regarding cancellation, the Tribunal gave significant weight to the applicant's explanation for the breach, which included the loss of family members and personal relationship issues. Crucially, the Tribunal also considered the applicant's genuine intention to continue his studies, his satisfactory academic record dating back to high school, and the substantial financial sacrifices made by his mother to support his education. The Tribunal concluded that, despite the breach, the exceptional circumstances and the applicant's overall presentation and future intentions warranted setting aside the cancellation decision.

Consequently, the Tribunal set aside the decision to cancel the applicant's Subclass 573 Higher Education Sector visa and substituted a decision not to cancel the visa.