Khan (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of Khan, an applicant whose Student (Temporary) (Class TU) visa, Subclass 572, had been cancelled. The dispute centred on whether the cancellation decision should be affirmed, particularly in light of the applicant's academic conduct and the subsequent expiry of his visa and cessation of his visa subclass program.

The primary legal issue before the Tribunal was whether the ground for cancellation under s 116(1)(fa)(ii) of the Migration Act 1958 (Cth) was made out. This provision allows for visa cancellation if a student visa holder has engaged, is engaging, or is likely to engage in conduct not contemplated by the visa. The Tribunal also had to consider whether to exercise its discretion to cancel the visa, having regard to all relevant circumstances, including government policy and the applicant's submissions.

The Tribunal affirmed the delegate's decision to cancel the visa under s 116(1)(fa)(ii) on the basis that the applicant had submitted plagiarised work for assessment, constituting conduct not contemplated by the visa. While acknowledging the applicant's explanation that this was due to a lack of guidance from his educational institution and a misunderstanding of Australian academic standards, the Tribunal found that the evidence of copied internet sources was substantial. In exercising its discretion, the Tribunal gave greater weight to prospective considerations, such as the applicant's future study intentions and the passage of time since the original cancellation, over historical factors. The Tribunal concluded that the visa cancellation should be affirmed.