Malik (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Student (Temporary) (Class TU) visa, specifically Subclass 573 Higher Education Sector, was subject to cancellation. The dispute arose because the applicant was alleged to have breached condition 8202 of their visa, which requires the holder to be enrolled in a registered course of study. The applicant contended that their real intention was to remain in Australia for work purposes, suggesting they were not a genuine student, and raised credibility concerns.

The Tribunal was required to determine whether the applicant had failed to comply with a condition of their visa, thereby giving rise to the ground for cancellation under s.116(1)(b) of the Migration Act 1958 (Cth). Furthermore, the Tribunal had to consider whether, having found a breach, it should exercise its discretion to cancel the visa, taking into account all relevant circumstances.

In its reasoning, the Tribunal affirmed that the applicant had indeed failed to comply with the visa condition, establishing that the ground for cancellation under s.116(1)(b) was met. The Tribunal then considered the discretionary power to cancel the visa, examining various documents provided by the applicant, including certificates of completion for courses, medical certificates, travel itineraries, English proficiency test results, and offer letters for further study. The Tribunal also considered submissions from the applicant's representative and other evidence, such as a statutory declaration regarding the applicant's mental state and medical certificates concerning the applicant's father. After weighing all these factors and circumstances, the Tribunal concluded that the visa should be cancelled.

The Tribunal affirmed the decision to cancel the applicant’s Class TU visa.