CHEN (Migration)

The Administrative Appeals Tribunal considered the cancellation of the applicant's Student (Temporary) (Class TU) visa, subclass 573 (Higher Education Sector). The applicant had been invited to respond to a notice of intention to consider cancellation, but the Tribunal found that the applicant's response did not dispute that grounds for cancellation may exist.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(fa) of the Migration Act 1958 (Cth) was made out, specifically whether the applicant was not a genuine student or had engaged in conduct not contemplated by the visa. 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 Tribunal was satisfied that the ground for cancellation existed. The applicant had a history of course cancellations and study gaps since arriving in Australia, having only completed two English language courses. While the applicant cited mental health issues and a desire for a further opportunity to study, the Tribunal found these circumstances did not outweigh the evidence of not being a genuine student. The Tribunal considered the applicant's circumstances, including his responses and relevant departmental policy.

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