1504455 (Migration)

This matter concerned an application to review the cancellation of the applicant's Subclass 573 Higher Education Sector visa. The applicant had held various student visas for approximately eight years in Australia. The Minister's delegate had cancelled the applicant's visa under section 116(1)(fa) of the Migration Act 1958 (Cth), which permits cancellation if the holder of a student visa is not, or is likely not to be, a genuine student, or has engaged, is engaging, or is likely to engage in conduct not contemplated by the visa.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(fa) of the Act was made out. This required the Tribunal to determine if the applicant was a "genuine student" or had engaged in conduct not contemplated by her visa. The Tribunal considered the applicant's extensive migration and academic history, including multiple course enrolments, deferrals, suspensions, and cancellations, in light of the definition of "genuine student" as established in *MIMA v Hou* [2002] FCA 574, and the prescribed matters under regulation 2.43 of the Migration Regulations 1994.

The Tribunal reasoned that while the applicant had a complex academic history with several course changes and deferrals, the evidence did not satisfy the threshold for cancellation under section 116(1)(fa)(i). Specifically, the Tribunal noted that one course was deferred or suspended due to "compassionate or compelling circumstances," a factor that, under regulation 2.43(1D)(c), does not necessarily preclude a finding of being a genuine student if those circumstances have ceased. Furthermore, the Tribunal found that the applicant had completed some courses and had enrolled in a further Bachelor of Business course shortly before the hearing. Consequently, the Tribunal was not satisfied that the applicant was not a genuine student.

The Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel it. The Tribunal also noted it had no jurisdiction concerning a second applicant.