Tariq (Migration)

The Administrative Appeals Tribunal (the Tribunal) considered the case of Tariq, a holder of a Student (Temporary) (Class TU) visa, subclass 573 (Higher Education Sector). The dispute arose from the delegate's decision to cancel Mr Tariq's visa. The cancellation was based on the delegate's assessment that Mr Tariq had failed to meet the visa condition requiring him to be enrolled in a course at the higher education sector level, having instead enrolled in vocational courses at a lower level, and also due to his poor course results and a change in his subject area.

The Tribunal was required to determine whether the delegate had correctly exercised their discretion to cancel Mr Tariq's visa. This involved assessing whether the delegate had properly considered all relevant factors for and against cancellation, including Mr Tariq's intention to study at the original higher education level and his enrolment in a package of courses that would ultimately lead to that level, as well as his mental health.

In its reasoning, the Tribunal found that the delegate had not adequately considered the mitigating factors presented by Mr Tariq. The Tribunal noted that Mr Tariq's enrolment in vocational courses was part of a package designed to enable him to eventually study at the higher education level, and that his poor results and change of subject were influenced by significant mental health challenges. The Tribunal applied the principles of administrative review, requiring a holistic assessment of the circumstances and a balanced consideration of the factors favouring and opposing visa cancellation. The Tribunal concluded that the delegate's decision to cancel the visa was not a proper exercise of discretion.

Consequently, the Tribunal set aside the delegate's decision to cancel Mr Tariq's visa and substituted a decision that the visa not be cancelled.