Asghar (Migration)

The Administrative Appeals Tribunal considered the case of Mr Asghar, who sought review of the Minister's decision to cancel his Subclass 500 (Student) visa. The dispute centred on whether Mr Asghar was a "genuine student" as required by the Migration Act 1958 (Cth).

The Tribunal was required to determine if the ground for cancellation under s 116(1)(fa)(i) of the Act, which relates to a student visa holder not being a genuine student, was made out. 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 reasoned that Mr Asghar was not a genuine student based on his study history, which included multiple course cancellations and a significant gap in study. His enrolment in a Diploma of Science was cancelled shortly after commencement, followed by a packaged course in Commercial Cookery, which was also cancelled due to unsatisfactory progress. The Tribunal noted a 14-month period between his last day of study and the notice of proposed cancellation, during which he provided no evidence of commitment to study. While acknowledging family illness, the Tribunal found it did not excuse the prolonged lack of engagement. Applying the principles from *MIMA v Hou*, the Tribunal concluded that Mr Asghar's conduct did not align with that of a genuine student, and therefore the ground for cancellation was established.

On balance, and considering all circumstances, including the applicant's limited compliance with visa conditions and lack of compelling need to remain in Australia, the Tribunal affirmed the decision to cancel Mr Asghar's visa.