1601105 (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Subclass 573 Higher Education Sector visa was subject to cancellation. The dispute centred on whether the ground for cancellation under s.116(1)(fa)(i) of the Migration Act 1958 (Cth) was met and, if so, whether the discretion to cancel the visa should be exercised.

The Tribunal was required to determine if the applicant's participation in a course of study had been deferred or suspended due to circumstances that engaged s.116(1)(fa)(i). If this ground for cancellation was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, taking into account all relevant circumstances.

The Tribunal found that the ground for cancellation under s.116(1)(fa)(i) was satisfied. In exercising its discretion, the Tribunal had regard to the applicant's evidence regarding potential disappointment to his family in India and the impact on his brother studying in Australia. However, the Tribunal did not accept the applicant as a credible witness and was not satisfied that he would likely be a genuine student in the future, despite some further studies undertaken. The Tribunal also noted vague evidence regarding an offer of enrolment. Considering the totality of the circumstances, the Tribunal concluded that the visa should be cancelled. The Tribunal affirmed the decision to cancel the applicant’s visa.