Gourav Kumar (Migration)

The Administrative Appeals Tribunal (the Tribunal) considered an application by Gourav Kumar (the applicant) for review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) to cancel his Student (Temporary) (Class TU) visa, subclass 500. The cancellation was based on the ground that the applicant was not enrolled in a course at the required Australian Qualifications Framework (AQF) level.

The Tribunal was required to determine whether the Minister's decision to cancel the applicant's visa was justified. This involved considering whether the applicant had breached a condition of his visa by failing to maintain enrolment at the required AQF level, and if so, whether there were compelling reasons to exercise the discretion to cancel the visa. The Tribunal also had to assess the applicant's conduct, including his reliance on advice from an education agent, his continued study during the period of the breach, and his subsequent re-enrolment at the appropriate level, to ascertain his genuine intention to study. The responsibilities of the education provider under Standards 8 and 9 of the National Code 2018 were also relevant considerations.

The Tribunal found that while the applicant had technically breached the visa condition, his actions demonstrated a genuine intention to study. The Tribunal noted that the applicant had relied on advice from his education agent and had continued to study throughout the period of the breach, subsequently re-enrolling at the correct AQF level. The Tribunal considered these factors, along with the applicant's overall conduct, as compelling reasons not to cancel the visa. The Tribunal concluded that the Minister's decision to cancel the visa was not justified.

The Tribunal set aside the decision under review and substituted it with a decision that the visa cancellation was not justified.