Shah (Migration)

The Administrative Appeals Tribunal (AAT) considered the cancellation of a Student (Temporary) (Class TU) visa, subclass 500, held by Mr Shah. The cancellation was based on the ground that Mr Shah was not enrolled at the required Australian Qualifications Framework (AQF) level. The AAT was required to determine whether the delegate's decision to cancel Mr Shah's visa was correct, and in doing so, to consider the exercise of discretion in relation to the circumstances giving rise to the non-compliance.

The central legal issue before the Tribunal was whether Mr Shah was a "non-genuine student" for the purposes of the *Migration Act 1958* (Cth) and its associated regulations. This involved assessing whether his enrolment was consistent with the genuine intention to study and whether the circumstances leading to his non-compliance with enrolment requirements were such that visa cancellation was warranted. The Tribunal had to weigh the seriousness of the non-compliance against any mitigating factors presented by Mr Shah.

In its reasoning, the Tribunal applied the principles of administrative law and the specific provisions of the *Migration Act* and *Migration Regulations 1994* (Cth) concerning student visas and grounds for cancellation. The Tribunal found that Mr Shah's conduct indicated he was not a genuine student, as his enrolment did not align with the purpose of obtaining a student visa. The Tribunal affirmed the delegate's decision to cancel the visa, concluding that the circumstances did not support an exercise of discretion in favour of Mr Shah.