Ju (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Subclass 500 (Student) visa. The dispute centred on whether the applicant was a "genuine student" as required by section 116(1)(fa)(i) of the Migration Act 1958 (Cth). The applicant had experienced language difficulties, changed courses, and sought psychological assistance, which the Tribunal considered in its review.

The primary legal issue before the Tribunal was to determine whether the ground for cancellation, namely that the applicant was not, or was likely not to be, a genuine student, was made out. This required the Tribunal to consider the meaning of "genuine student" as interpreted in case law, and to assess the applicant's circumstances in light of the relevant provisions of the Migration Act and Migration Regulations 1994, including prescribed matters to which regard may be had. The Tribunal also had to consider whether, if the ground for cancellation was established, it was appropriate to exercise the discretion to cancel the visa, having regard to various factors outlined in departmental guidelines.

The Tribunal reasoned that the ground for cancellation was not established in this instance. It considered the applicant's evidence, including their language difficulties, course changes, and the psychological assistance received. The Tribunal applied the principles from *MIMA v Hou* [2002] FCA 574 regarding the "genuine student" concept, which extends beyond mere literal compliance with visa conditions to encompass the student's conduct and behaviour. Having found that the ground for cancellation did not exist, the Tribunal did not need to consider the exercise of discretion.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 500 (Student) visa.