1604539 (Migration)

This matter concerned a review of a decision to affirm the cancellation of a student visa. The applicant, who had been granted a Subclass 573 Higher Education Sector visa, arrived in Australia in November 2014. The Department of Immigration and Border Protection had cancelled the visa on the grounds that the applicant was not a genuine student, as evidenced by the cancellation of her enrolments in both an English for Academic Purposes course and a Bachelor of Business degree due to non-commencement, and her failure to successfully complete a course or undertake study at a higher education sector level.

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, the Tribunal had to consider whether the applicant was, or was likely to be, a genuine student, as contemplated by section 116(1)(fa)(i). The Tribunal also had to consider the application of prescribed matters under section 116(1A) and regulations 2.43(1C) and (1D) of the Migration Regulations 1994 (Cth), which relate to deferrals or suspensions of study.

The Tribunal reasoned that the applicant's enrolments were cancelled due to non-commencement of studies, and she had not successfully completed a course or undertaken higher education level study. This conduct indicated that she was not a genuine student. The Tribunal noted that while case law, such as *Shrestha v MIMA* and *MIMA v Hou*, provides guidance on the interpretation of "genuine student," the applicant's circumstances fell outside the scope of "innocent temporary mishap" or "transient misadventure." Furthermore, the Tribunal found that the prescribed matters under regulation 2.43 did not apply in this case. The Tribunal also noted that it had no jurisdiction with respect to a second, unnamed applicant.

The Tribunal affirmed the decision under review, concluding that the visa cancellation was justified.