Ashgar (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 500 (Student) visa of an applicant, Mr. Ashgar. The dispute arose from concerns that the applicant was not a "genuine student," as evidenced by his low attendance rates, subject failures, cancelled enrolments, and subsequent enrolment in lower-level courses across different subject areas.

The Tribunal was required to determine whether the grounds for cancellation under section 116(1)(fa)(i) of the Migration Act 1958 (Cth) were made out, specifically whether the applicant was, or was likely to be, 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, taking into account all relevant circumstances.

The Tribunal found that the applicant's admissions regarding his academic performance, including a 48.30% attendance rate and failure in all subjects in his initial course, followed by a 8% attendance rate and failure to achieve competency in a unit in his subsequent courses, established that he was not a genuine student. However, in exercising its discretion, the Tribunal gave significant weight to the applicant's personal circumstances. These included his youth and inexperience upon arrival in Australia, the stress caused by his sister's marital problems and his uncle's death prior to his arrival, and his immaturity at the time. The Tribunal accepted that these factors contributed to his difficulties in studying and his poor decision-making.

Balancing these factors, the Tribunal concluded that the visa should not be cancelled, offering the applicant a final opportunity to demonstrate he is a genuine student. Accordingly, the Tribunal set aside the decision to cancel the visa and substituted a decision not to cancel the applicant's Subclass 500 (Student) visa.