Han (Migration)

This matter concerned an appeal by an applicant against the cancellation of her Student (Temporary) (Class TU) visa, subclass 573 (Higher Education Sector visa). The applicant had failed to respond to the Department's Notice of Intention to Consider Cancellation (NOICC) and did not attend the tribunal hearing. The Tribunal was required to determine whether the grounds for cancellation existed and, if so, whether the visa should be cancelled.

The primary legal issue before the Tribunal was whether the applicant was a "genuine student" for the purposes of section 116(1)(fa)(i) of the Migration Act 1958 (Cth), or whether she had engaged in conduct not contemplated by the visa under section 116(1)(fa)(ii). The Tribunal considered the prescribed matters under regulation 2.43 of the Migration Regulations 1994, which included the applicant's course progress, attendance, and any deferrals or suspensions of her studies.

The Tribunal found that the applicant's enrolment history demonstrated a pattern of unsatisfactory course progress, non-commencement of studies, and unsatisfactory attendance across multiple educational institutions. This history, coupled with the applicant's failure to respond to the NOICC or attend the hearing, led the Tribunal to be satisfied that the ground for cancellation under section 116(1)(fa)(i) was made out. The Tribunal concluded that the applicant's present intention for residing in Australia was not for the purposes of study, and that the grounds for cancellation outweighed any hardship incurred.

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