Pathan (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of Mr. Pathan, who held a Subclass 573 Higher Education Sector visa. The dispute concerned the potential cancellation of his visa. The AAT was required to determine whether the grounds for cancellation existed and, if so, whether the discretion to cancel the visa should be exercised.

The applicant had initially enrolled in a Bachelor of Engineering but found it unsuitable, failing several subjects. He then transferred to a Bachelor of Business but also experienced academic difficulties, passing only one of three subjects in his first semester. This was compounded by severe lower back pain, which began in March 2016 and significantly impacted his ability to study. He sought to reduce his subject load and defer his studies, but due to non-payment of tuition fees for a third subject, his enrolment was eventually terminated. The applicant presented evidence of his medical condition, his attempts to manage his studies and enrolment, and his subsequent plans for further education, including a confirmed enrolment in a Diploma of Business commencing in November 2017.

The Tribunal reasoned that while the applicant had not maintained satisfactory course progress, the circumstances surrounding his academic difficulties, particularly his medical issues and the communication with his education provider, warranted consideration. The applicant demonstrated a genuine desire to continue his studies, evidenced by his efforts to find alternative institutions and his commitment to applying himself fully. The Tribunal noted the significant financial investment by his family and the cultural importance placed on education. Considering the totality of the circumstances, including the applicant's medical condition and his proactive steps to re-engage with his studies, the Tribunal concluded that the discretion to cancel the visa should not be exercised.

The Tribunal set aside the decision under review and substituted a decision not to cancel Mr. Pathan's Subclass 573 Higher Education Sector visa.