1505503 (Migration)

The Administrative Appeals Tribunal considered a decision to cancel the applicant's Subclass 572 Vocational Education and Training Sector visa. The dispute centred on whether the grounds for cancellation under section 116(1)(fa) of the Migration Act 1958 (Cth) were met, and if so, whether the discretion to cancel the visa should be exercised.

The Tribunal was required to determine if the applicant, a student visa holder, was a "genuine student" as contemplated by section 116(1)(fa)(i) of the Act. This involved assessing whether the applicant's conduct, despite literal compliance with visa conditions, demonstrated a lack of genuine engagement with her studies, potentially occupying a place that could be taken by a more committed student. The Tribunal also had to consider whether to exercise its discretion to cancel the visa, having regard to all relevant circumstances.

The Tribunal found that the applicant was not a genuine student, citing her admitted practice of copying information from the internet to complete assignments without proper attribution or understanding. This conduct, the Tribunal reasoned, fell within the scope of "not a genuine student" as interpreted in *MIMA v Hou* [2002] FCA 574. In exercising its discretion, the Tribunal noted the applicant had resided in Australia for nearly four years without significantly improving her English, had failed to demonstrate learning, and was likely unlawfully present in Australia since her visa cancellation. No compelling circumstances or international obligations were raised to mitigate against cancellation.

Consequently, the Tribunal affirmed the decision to cancel the applicant's visa.