Gautam (Migration)

The Administrative Appeals Tribunal (AAT) considered the cancellation of a Student (Temporary) (Class TU) visa, Subclass 573 (Higher Education Sector), held by Mr. Gautam. The Department of Home Affairs had cancelled Mr. Gautam's visa due to his failure to respond to a hearing invitation and his subsequent non-attendance at a scheduled hearing. The primary ground for cancellation was that Mr. Gautam was not enrolled in a registered course, which is a condition for holding this type of visa.

The AAT was required to determine whether the decision to cancel Mr. Gautam's visa was justified, and if not, whether to set aside the decision and substitute a new decision. This involved considering whether Mr. Gautam had failed to meet the criteria for the visa, specifically the requirement to be enrolled in a registered course, and whether the discretion to cancel the visa had been exercised correctly. The Tribunal also had to assess whether Mr. Gautam's failure to participate in the review process, including his non-attendance at the hearing, was a relevant factor in the exercise of discretion.

In its reasoning, the AAT noted that Mr. Gautam had not provided any evidence to demonstrate his enrolment in a registered course, nor had he offered any explanation for his failure to attend the hearing. The Tribunal found that this prolonged period of non-compliance indicated that the purpose of the visa had not been fulfilled. The AAT concluded that the discretion to cancel the visa was validly exercised, taking into account the significant non-compliance and the failure to engage with the review process. Consequently, the AAT affirmed the decision under review.