1507299 (Migration)

The Administrative Appeals Tribunal considered the decision to cancel the visa of a student visa holder. The applicant sought to have the cancellation decision set aside.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(fa) of the Migration Act 1958 (Cth) was made out, specifically whether the applicant was a "genuine student" or had engaged in conduct not contemplated by the visa. If the ground was established, the Tribunal then 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, relying on evidence of prolonged periods of non-enrolment in a registered course of study, despite holding a student visa. This conduct was considered a breach of visa condition 8202. The Tribunal also noted that the applicant's only enrolment in a course appropriate for a previous visa subclass had been cancelled. Applying the principles from *MIMA v Hou* and considering the prescribed matters under the Migration Regulations 1994, the Tribunal concluded that the ground for cancellation existed. In exercising its discretion, the Tribunal found no compelling need for the applicant to remain in Australia and affirmed the decision to cancel the visa.