1711022 (Migration)

This matter concerned an application to affirm the decision to cancel the Subclass 572 Vocational Education and Training Sector visa of the first applicant. The applicant, who was a student visa holder, had been issued a Notice of Intention to Consider Cancellation. The dispute centred on whether the grounds for cancellation under section 116(1)(fa) of the Migration Act 1958 (Cth) were made out, and if so, whether the discretion to cancel the visa should be exercised. The Tribunal, constituted by Sean Baker, was required to determine these issues.

The primary legal issues before the Tribunal were whether the applicant was a "genuine student" as contemplated by section 116(1)(fa)(i) of the Act, or whether she had engaged in conduct not contemplated by the visa under section 116(1)(fa)(ii). If these grounds were established, the Tribunal then had to consider whether, in the exercise of its discretion, the visa should be cancelled, taking into account all relevant circumstances, including the applicant's submissions regarding family hardship and her son's upbringing in Australia.

The Tribunal found that the ground for cancellation under section 116(1)(fa)(i) was established. This was based on evidence from the applicant's college indicating she had not submitted assignments or completed any subjects for her course, and that she was not enrolled in a registered course of study at the time the notice of intention to cancel was issued. While acknowledging the applicant's claims of family hardship and her son's connection to Australia, the Tribunal concluded that these did not constitute compelling reasons to retain the visa. The Tribunal weighed these factors against the applicant's failure to demonstrate satisfactory academic progress and her lack of a compelling need to remain in Australia.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's visa. The Tribunal noted that it had no jurisdiction with respect to any other applicants.