Gunawan (Migration)

This matter concerned an appeal by Mr. Gunawan against the cancellation of his Subclass 573 Higher Education Sector visa. The Minister had cancelled the visa under section 116(1)(fa)(i) of the Migration Act 1958 (Cth), on the grounds that Mr. Gunawan was not, or was likely not to be, a genuine student. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether the ground for cancellation existed and, if so, whether the discretion to cancel the visa should be exercised.

The Tribunal was required to consider whether Mr. Gunawan was a genuine student, as defined by section 116(1)(fa)(i) of the Act, and whether his conduct, including omissions, was not contemplated by the visa. This involved assessing whether his primary purpose for holding the visa was for study, and whether he had genuinely engaged in academic pursuits. The Tribunal also had to consider the prescribed matters under regulation 2.43 of the Migration Regulations 1994 (Cth) when determining the existence of the cancellation ground.

The Tribunal found that the ground for cancellation was made out. Mr. Gunawan had been in Australia for approximately two and a half years but had only completed a two-month General English course. PRISMS records indicated he had not studied for nineteen months and was not enrolled for twelve months. He conceded that he had not attended any classes for a Diploma of Business course commenced in September 2016, and his enrolment had subsequently been cancelled. He also admitted to not being enrolled in a registered course since 2017. The Tribunal considered the purpose of a student visa to be for study and concluded that Mr. Gunawan's prolonged periods of non-study and non-enrolment demonstrated he was not a genuine student.

Having affirmed the existence of the cancellation ground, the Tribunal exercised its discretion and affirmed the decision to cancel Mr. Gunawan's visa. The Tribunal concluded that, considering all the circumstances, the visa should be cancelled.