Akhtar (Migration)

This matter concerned an appeal by the applicant, Mr Akhtar, against the cancellation of his Subclass 573 Higher Education Sector visa. The Department of Immigration and Border Protection had issued a Notice of Intention to Consider Cancellation on the grounds that the applicant was not, and was unlikely to be, a genuine student. The applicant's study history, as recorded by PRISMS, indicated multiple course enrolments and cancellations, non-commencement of studies, and unsatisfactory course progress. He had also experienced a significant non-study period of nine months and was enrolled in a Certificate III course, which was below the Higher Education Sector level required for his visa.

The Tribunal was required to determine whether the ground for cancellation under s 116(1)(fa)(i) of the Migration Act 1958 (Cth) existed, specifically whether the applicant was a genuine student. If this ground was established, the Tribunal then had to consider whether, in the exercise of its discretion, the visa should be cancelled, having regard to all relevant circumstances. The Tribunal noted that the definition of a "genuine student" focused on behaviour and engagement with studies, not merely literal compliance with visa conditions.

In its reasoning, the Tribunal acknowledged the applicant's extensive non-study period and his failure to successfully complete any course of study since his arrival in Australia. It also noted his enrolment in a vocational course below the required level. While these factors weighed in favour of cancellation, the Tribunal ultimately concluded that the visa should not be cancelled. It recognised that the cancellation of a visa is a significant matter and, after considering the circumstances as a whole, including factors beyond the applicant's control that may have contributed to his study difficulties, it found the matter to be finely balanced.

Consequently, the Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel it.