Kamatam (Migration)

The Administrative Appeals Tribunal considered the cancellation of the applicant's Subclass 500 (Student) visa. The dispute centred on whether the applicant was a "genuine student" as required by section 116(1)(fa)(i) of the Migration Act 1958 (Cth).

The Tribunal was required to determine if the ground for cancellation under section 116(1)(fa)(i) of the Act was made out, specifically whether the applicant was a genuine student. This involved assessing the applicant's study history in Australia, including any changes in her course of study, non-enrolments, or lack of academic progression, and considering the prescribed matters under regulation 2.43 of the Migration Regulations 1994.

The Tribunal found that the applicant's study history, while complex, was largely explained by circumstances beyond her control. These included the cancellation of courses by education providers, the death of her father which led to ill health and stress impacting her studies, and the subsequent withdrawal from courses due to the refusal of deferrals by educational institutions. The Tribunal accepted the applicant's evidence, corroborated by documentary proof, and found that the reasons for study disruptions were due to compassionate or compelling circumstances, or events outside her control, rather than her conduct or misrepresentation. Consequently, the Tribunal was not satisfied that the ground for cancellation existed.

The Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel the visa.