1604837 (Migration)

This matter concerned an appeal by Ms Zhen Wang against the cancellation of her Subclass 573 Higher Education Sector visa. The primary issue before the Tribunal was whether the Minister's decision to cancel Ms Wang's visa, pursuant to section 116 of the Migration Act 1958 (Cth), should be affirmed.

The Tribunal was required to determine if the ground for cancellation under section 116(1)(fa)(i) of the Act, namely that Ms Wang was not a genuine student, was made out. If this 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 court also considered the prescribed matters under section 116(1A) and regulation 2.43 of the Migration Regulations 1994 (Cth) relevant to determining the genuine student status.

The Tribunal found that Ms Wang had substantially failed to maintain enrolment in a prescribed course of study since her arrival in Australia. Despite her initial intention to study, her enrolment in a Master of Professional Accounting degree was cancelled for non-commencement, and a subsequent enrolment in a Diploma of Business was also cancelled for non-commencement. While Ms Wang attributed these issues to her agent, the Tribunal held that it was her responsibility to ensure she met her visa criteria. The Tribunal was not satisfied that Ms Wang's claims of hardship if her visa were cancelled were credible, nor did it accept that her current intention in remaining in Australia was for the purposes of study.

The Tribunal affirmed the decision to cancel Ms Wang's visa, concluding that she was not a genuine student. The Tribunal noted it had no jurisdiction with respect to a second applicant.