Liu (Migration)

This matter concerned an appeal by an applicant against the decision of the Minister to cancel his Student (Temporary) (Class TU) visa, subclass 573 Higher Education Sector. The applicant had entered Australia with the intention of working, and his enrolment in his registered course of study was cancelled due to non-commencement of studies. The Tribunal was required to determine whether the grounds for cancellation under section 116(1)(fa) of the Migration Act 1958 (Cth) were made out, and if so, whether the discretion to cancel the visa should be exercised.

The Tribunal considered whether the applicant was a "genuine student" or had engaged in conduct not contemplated by the visa, as per section 116(1)(fa)(i) and (ii) of the Act. The Tribunal noted that the applicant had not commenced studies since his arrival in Australia and his enrolments had been cancelled for non-commencement. The applicant also stated he travelled to Australia to work and only discovered he had been granted a student visa after arrival, and that his English competency was inadequate for study.

Applying the principles from *MIMA v Hou* [2002] FCA 574, the Tribunal found that the applicant was not a genuine student. The Tribunal also considered the applicant's stated intention to work, his lack of engagement in studies, and his inadequate English language competency. Despite acknowledging potential financial hardship and the risk of becoming an unlawful non-citizen, the Tribunal concluded that the circumstances warranted the exercise of discretion to cancel the visa. The Tribunal affirmed the decision to cancel the applicant's visa.