CHEN (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of Mr. Chen, who sought review of the Minister's decision to cancel his Student (Temporary) (Class TU) visa, subclass 573. The cancellation was based on the applicant's failure to maintain enrolment in a registered higher education course and his limited academic progress, which led to the conclusion that he was not a genuine student. Mr. Chen had departed Australia prior to the Tribunal's hearing.

The primary legal issue before the Tribunal was whether the cancellation of Mr. Chen's visa under section 116(1)(fa)(i) of the Migration Act 1958 (Cth) was justified, and if so, whether the discretion to cancel the visa should be exercised. This required the Tribunal to assess whether Mr. Chen was a genuine student and to consider various factors in exercising its discretion, including the circumstances in which the ground for cancellation arose, the applicant's purpose for travel, his compliance with visa conditions, and any potential hardship.

The Tribunal found that while Mr. Chen had faced difficulties due to the illness and death of his grandmother, these circumstances did not sufficiently explain or justify his poor academic progress or failure to complete his studies. The Tribunal concluded that these difficulties were not outside of his control or exceptional. Furthermore, the Tribunal found that Mr. Chen had no compelling need to remain in Australia, particularly as he had already departed. His failure to remain enrolled in a registered course constituted a breach of his visa conditions. The Tribunal also noted that Mr. Chen had not raised any claims of hardship resulting from the cancellation, and his departure from Australia suggested no such hardship had been caused.

Consequently, the Tribunal affirmed the decision to cancel Mr. Chen's visa.