Gitau (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Student (Temporary) (Class TU) visa, Subclass 500, held by Mr. Gitau. The dispute arose when the Department of Home Affairs formed the view that Mr. Gitau was not a genuine student, leading to a notice of intention to cancel his visa. The Tribunal was tasked with determining whether the grounds for cancellation existed and, if so, whether to exercise its discretion to cancel the visa.

The legal issues before the Tribunal were whether Mr. Gitau was a genuine student, as contemplated by section 116(1)(fa)(i) of the Migration Act 1958 (Cth), and whether his conduct, including omissions, was not contemplated by the visa, pursuant to section 116(1)(fa)(ii). The Tribunal was required to consider the prescribed matters under regulation 2.43 of the Migration Regulations 1994 (Cth) when assessing the genuine student ground. Furthermore, if the ground for cancellation was established, the Tribunal had to consider whether to exercise its discretion to cancel the visa, taking into account all relevant circumstances.

The Tribunal found that the ground for cancellation under section 116(1)(fa)(i) did exist, noting gaps in Mr. Gitau's study and a lack of academic progress. However, in exercising its discretion, the Tribunal weighed various factors presented by Mr. Gitau. These included his father's serious illness and subsequent financial hardship, the theft of his study documents, traffic offences leading to court appearances and bail conditions, and the impact of the COVID-19 pandemic on his family's business and his ability to pay fees. The Tribunal also noted that Mr. Gitau was close to completing his course.

On balance, the Tribunal concluded that the visa should not be cancelled. It set aside the decision under review and substituted a decision not to cancel Mr. Gitau's Subclass 500 (Student) visa.