I Gede Darmawan (Migration)

This matter concerned an appeal by I Gede Darmawan against the cancellation of his Subclass 572 Vocational Education and Training Sector visa. The applicant had been granted the visa to study in Australia. The Minister's delegate had cancelled the visa on the grounds that the applicant was not a genuine student and had engaged in conduct not contemplated by the visa, specifically by failing to maintain enrolment in a full-time registered course and working excessive hours. The applicant contended that he had lost a significant sum of money through online trading, which necessitated him discontinuing his studies and working full-time to recoup the funds.

The Tribunal was required to determine whether the grounds for cancellation under section 116(1)(fa)(i) and (ii) of the Migration Act 1958 (Cth) were made out. Specifically, the Tribunal had to assess whether the applicant was, or was likely to be, a genuine student, and whether his conduct, including working excessive hours and failing to maintain enrolment, was contemplated by the terms of his student visa. The Tribunal also had to consider whether to exercise its discretion to cancel the visa, having regard to the applicant's purpose for travel, compliance with visa conditions, and the potential hardship that cancellation might cause.

In its reasoning, the Tribunal applied the principles established in *MIMA v Hou* [2002] FCA 574 regarding the "genuine student" requirement. The Tribunal found that the applicant had failed to maintain enrolment in a full-time course and had worked excessive hours, which constituted fundamental breaches of his visa conditions. While acknowledging the applicant's stated intention to start a business in Indonesia, the Tribunal was not satisfied that he had a compelling need to remain in Australia to complete an Advanced Diploma of Accounting, particularly given his prior studies and work experience. The Tribunal accepted that some hardship would be caused by the cancellation but concluded that, on balance, the grounds for cancellation were established and the discretion to cancel the visa should be exercised.

Consequently, the Tribunal affirmed the decision to cancel the applicant's Subclass 572 visa.