Rana (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Student (Temporary) (Class TU) Subclass 573 visa was subject to cancellation. The dispute arose from the applicant's failure to maintain enrolment in a registered course relevant to his visa subclass, specifically a Bachelor of Engineering at Deakin University, from March 2014. The applicant contended that despite this non-compliance, he had maintained enrolment and completed studies related to the automotive industry, with a genuine aspiration to become a specialised mechanic in hybrid and Formula racing cars.

The primary legal issue before the Tribunal was whether to exercise its discretion to cancel the applicant's visa, notwithstanding the finding that a ground for cancellation under s 116(1)(b) of the *Migration Act 1958* (Cth) existed. The Tribunal was required to weigh the favourable and unfavourable factors presented by the applicant against the policy guidelines contained in the Department's Procedures Advice Manual. The applicant argued that his non-compliance stemmed from misleading advice from a migration agent and an immature decision to transfer educational institutions due to logistical challenges, rather than a lack of genuine intention to pursue his career goals.

In its reasoning, the Tribunal acknowledged the applicant's credibility and observed that he appeared to be a relatively immature individual who passively accepted advice. The Tribunal found that the applicant had maintained a genuine interest in mechanics and had completed relevant studies, even while working in the automotive industry. While the applicant had not complied with his visa condition, the Tribunal was persuaded by his circumstances, including the misleading advice he received and his apparent immaturity, to exercise its discretion not to cancel the visa.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Class TU visa. The Tribunal noted that this decision was reached marginally in the applicant's favour.