Suthar (Migration)

The Administrative Appeals Tribunal considered the cancellation of the applicant's Subclass 500 (Student) visa. The dispute arose when the Minister, pursuant to section 116 of the Migration Act 1958 (Cth), formed the belief that the applicant was not a genuine student. The applicant had ceased enrolment in a registered course of study for a significant period, had limited academic progress, and experienced financial hardship.

The Tribunal was required to determine whether the grounds for cancellation under section 116(1)(fa)(i) of the Act were made out, specifically whether the applicant was, or was likely to be, a genuine student. If the grounds were established, the Tribunal then had to consider whether, in the exercise of its discretion, the visa should be cancelled, having regard to all relevant circumstances. The Tribunal also considered the prescribed matters under regulation 2.43 of the Migration Regulations 1994 (Cth) relevant to determining the genuine student requirement.

The Tribunal accepted the applicant's admissions that he had not maintained his study plan, had a substantial gap in his enrolment, and had limited academic progress. Consequently, the Tribunal found that the grounds for cancellation under section 116(1)(fa)(i) were made out. However, in exercising its discretion, the Tribunal took into account the applicant's explanation for his circumstances, including difficulties in finding employment, financial hardship, and a period of depression, which he attributed in part to the conduct of a previous representative. The Tribunal also noted the applicant's desire to complete his accounting studies and his partner's presence in Australia.

Balancing these circumstances, the Tribunal concluded that the visa should not be cancelled, affording the applicant a final opportunity to demonstrate he is a genuine student. The Tribunal requested ongoing monitoring of the applicant's future compliance. The decision under review was set aside, and a substituted decision was made not to cancel the applicant's Subclass 500 (Student) visa.