1509358 (Migration)

The Administrative Appeals Tribunal (AAT) considered the decision to cancel the Subclass 572 Vocational Education and Training Sector visa held by the first applicant. The dispute arose from the Minister's power under section 116 of the Migration Act 1958 (Cth) to cancel a visa if satisfied that the holder is not, or is likely not to be, a genuine student, or has engaged, is engaging, or is likely to engage in conduct not contemplated by the visa. The second applicant, the first applicant's ex-wife, was also affected by the cancellation, though the Tribunal noted it had no jurisdiction concerning her.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(fa)(i) of the Act was made out, specifically whether the first applicant was a genuine student. If this ground was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, taking into account all relevant circumstances, including government policy and prescribed matters under regulation 2.43 of the Migration Regulations 1994.

The Tribunal reasoned that the first applicant had not demonstrated he was a genuine student. His migration history showed he arrived in Australia in 2008 and held several student visas, often as a dependent. He was granted a student visa in his own right in November 2013 but did not commence the enrolled course. It was not until May 2014 that he enrolled in an English language course, and a substantive course in the Vocational Education and Training sector only commenced in July 2014. The Tribunal found that the applicant had failed to maintain appropriate enrolment between March and July 2014, which, while potentially a breach of visa conditions, was primarily considered as evidence that he was not a genuine student. In exercising its discretion, the Tribunal considered the purpose of the applicant's stay, finding no compelling need to remain in Australia given his status as not a genuine student. While acknowledging the cancellation would mean returning home without a qualification, the Tribunal did not consider this to constitute hardship in light of its findings.

The Tribunal affirmed the decision to cancel the first applicant's Subclass 572 visa.