1622144 (Migration)

This matter concerned an appeal by a citizen of Pakistan against the cancellation of his Subclass 573 Higher Education Sector student visa. The applicant had been granted the visa in November 2015 with an expiry date of September 2017, intending to undertake a bachelor degree. However, his initial enrolment was cancelled in February 2016 due to non-payment of fees, and he did not have a confirmed enrolment between February 2016 and October 2016, despite remaining in Australia. The Department of Home Affairs issued a Notice of Intention to Consider Cancellation in December 2016, and subsequently cancelled the visa, citing an extended period of no study and lack of academic progress as indicators that the applicant was not a genuine student.

The primary legal issue before the Tribunal was whether the applicant was a "genuine student" for the purposes of section 116(1)(fa)(i) of the Migration Act 1958 (Cth), which permits visa cancellation if the holder is not, or is likely not to be, a genuine student. The Tribunal was also required to consider whether to exercise its discretion to cancel the visa, having regard to all relevant circumstances, including government policy and matters raised by the applicant.

The Tribunal affirmed the cancellation decision. It found that the applicant's extended period without study, the cancellation of his initial enrolment due to non-payment, and the lack of a confirmed enrolment for a substantial period demonstrated that he was not a genuine student and that study was not his primary purpose for being in Australia. The Tribunal also noted non-compliance with visa conditions, including failure to update his address promptly. While acknowledging the applicant's claimed hardship, including potential depressive feelings, the Tribunal found these concerns to be treatable and manageable, and therefore did not outweigh the grounds for cancellation. The Tribunal concluded that the applicant's conduct and circumstances did not warrant the exercise of discretion to set aside the cancellation.