Chen (Migration)

The Administrative Appeals Tribunal affirmed the decision to cancel the applicant's Student (Temporary) (Class TU) visa, Subclass 573 Higher Education Sector. The dispute concerned whether the applicant was a "genuine student" as required by section 116(1)(fa)(i) of the Migration Act 1958 (Cth), or whether their conduct was not contemplated by the visa under section 116(1)(fa)(ii). The Tribunal was required to determine if the grounds for cancellation existed and, if so, whether to exercise its discretion to cancel the visa, considering all relevant circumstances.

The Tribunal considered the applicant's enrolment history since arriving in Australia in December 2014. This history included the completion of an English Language Program and an IELTS preparation course, but also multiple course cancellations and a significant eight-month study gap. The Tribunal applied the principles from *MIMA v Hou* [2002] FCA 574 regarding the "genuine student" concept, which focuses on behaviour and actual engagement with tertiary education. Furthermore, the Tribunal had regard to prescribed matters under regulation 2.43 of the Migration Regulations 1994, which include circumstances where course participation is deferred or suspended due to the holder's conduct or non-compassionate/compelling circumstances.

The Tribunal found that the applicant had demonstrated a substantial lack of academic progress over a significant period and had not provided sufficient evidence of commitment to successful study in Australia. Despite opportunities to rectify their study situation, the applicant had not done so. The Tribunal concluded that the applicant had not complied with the conditions of their student visa and did not have a compelling need to remain in Australia, as their intended business-related courses could be completed in their home country. Consequently, the Tribunal affirmed the decision to cancel the applicant's visa.