1725571 (Migration)

This matter concerned an appeal to the Administrative Appeals Tribunal regarding the cancellation of the applicant's Subclass 500 Student visa. The applicant had been granted the visa in December 2016 and arrived in Australia shortly thereafter. The visa was subsequently cancelled by a delegate on 12 October 2017, following an investigation that indicated the visa may have been obtained through fraudulent conduct by a locally engaged Departmental employee in Pretoria. The applicant sought review of this cancellation decision.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(g) of the Migration Act 1958 (Cth) and regulation 2.43(1)(o) of the Migration Regulations 1994 (Cth) was made out, specifically whether the visa was obtained as a result of fraudulent conduct. If this ground was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, having regard to all relevant circumstances.

The Tribunal found that the ground for cancellation was established, being satisfied that the visa was obtained as a result of fraudulent conduct by Departmental employees in Pretoria. In exercising its discretion, the Tribunal considered the applicant's stated intention to study in Australia and the fact that he had completed some courses. However, the Tribunal gave significant weight to the applicant's subsequent actions, including his failure to seek to resume studies after the visa cancellation and his application for a Protection visa, which was deemed inconsistent with his original purpose of study. The Tribunal also noted the applicant's claims of fathering children and marrying in Australia, but concluded that these factors did not outweigh the concerns regarding his genuine intention to be a temporary entrant for study.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's Subclass 500 Student visa, finding that the applicant was not a genuine temporary entrant for study at the time of the decision.