Javaid (Migration)

The Administrative Appeals Tribunal considered the case of Mr. Javaid, who sought review of a decision to cancel his Student (Temporary) (Class TU) visa, subclass 500. The cancellation was based on the ground that Mr. Javaid was not a genuine student, having failed to complete any courses and ceasing enrolment in his initial studies. He had subsequently changed to vocational courses, citing family health issues, financial hardship, the impact of the COVID-19 pandemic, and a marriage breakdown as contributing factors.

The Tribunal was required to determine whether the ground for cancellation under s 116(1)(fa)(i) of the *Migration Act 1958* (Cth) was established, and if so, whether to exercise its discretion to cancel the visa. The specific legal issue was whether Mr. Javaid was a genuine student, given his history of non-completion of studies and his subsequent enrolment in vocational courses.

The Tribunal found that the ground for cancellation was established, as Mr. Javaid had not completed a registered course since his arrival and had previously had courses cancelled for unsatisfactory progress and non-commencement. However, the Tribunal then considered its discretion not to cancel the visa. It had regard to Mr. Javaid's circumstances, including his young age upon arrival and at the time of the hearing, his remorse, and his genuine efforts to complete his current course. The Tribunal also noted his expressed shame at his failures and his desire not to return home due to family disappointment. Factors weighing in favour of not cancelling the visa included his current efforts to study, his engagement with psychological counselling, and his assurances of future compliance with visa conditions. The Tribunal acknowledged the impact of his father's illness, family financial losses due to the pandemic, and his own marriage breakdown as contributing factors to his past difficulties.

The Tribunal was satisfied that the ground for cancellation existed but exercised its discretion not to cancel Mr. Javaid's visa. The decision under review was set aside.