Lim (Migration)

This matter concerned the affirmation of a decision to cancel the applicant's Subclass 573 Higher Education Sector visa. The applicant had been issued a Notice of Intention to Consider Cancellation on the grounds that he was not, or was likely not to be, a genuine student. The applicant responded by explaining a series of changes in his course of study and education providers, including commencing a course at The Cantillon Institute which subsequently ceased accepting international students, leading him to enrol at Australian Professional Skills Institute Pty Ltd.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(fa)(i) of the Migration Act 1958 (Cth) existed, and if so, whether to exercise its discretion to cancel the visa. The legal issue revolved around the interpretation of "genuine student," with reference to case law such as *Shrestha v MIMA* and *MIMA v Hou*, which indicated that the provision was not intended to capture students experiencing temporary difficulties but rather those who were not genuinely engaging in their studies. The Tribunal also considered prescribed matters under regulation 2.43 of the Migration Regulations 1994, though it found that specific subregulations did not apply.

The Tribunal reasoned that the applicant was not, or was likely not to be, a genuine student, finding that the ground for cancellation existed. It noted that the applicant had repeatedly changed courses and providers since arriving in Australia, had not completed any Higher Education Sector courses, and had only completed two Lower Education Sector courses. The Tribunal concluded that these circumstances did not arise from extenuating circumstances beyond the applicant's control. In exercising its discretion to cancel the visa, the Tribunal gave considerable weight to these factors, finding that while the applicant might suffer hardship, it was not of a significant degree. The Tribunal also observed that a decision not to cancel the visa would not enable the applicant to pursue his desired study in Cookery, as he had a separate review pending for a Subclass 572 visa application.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's Subclass 573 Higher Education Sector visa.