Miao (Migration)

This matter concerned the review of a decision to cancel the Subclass 573 Higher Education Sector visa held by the applicant. The applicant had been granted the visa on 2 February 2015, with the intention of studying a Master of Accounting and Marketing. The Department of Home Affairs issued a Notice of Intention to Consider Cancellation on 31 August 2016, alleging that the applicant was not a genuine student and that his primary purpose for holding the visa was not for study. The applicant did not respond to this notice.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(fa) of the Migration Act 1958 (Cth) was made out, and if so, whether the discretion to cancel the visa should be exercised. Section 116(1)(fa) permits cancellation if the visa holder is not, or is likely not to be, a genuine student, or has engaged, is engaging, or is likely to engage in conduct not contemplated by the visa. The Tribunal also considered prescribed matters under regulation 2.43 of the Migration Regulations 1994, which include the deferral or suspension of a course of study.

The Tribunal found that the ground for cancellation was established. The applicant's initial Confirmation of Enrolment (COE) for the Master's degree was cancelled on 17 March 2015 due to non-commencement of studies. Subsequent COEs for English language courses were also cancelled due to non-commencement. At the time of the Department's decision, approximately 18 months after the visa was granted, the applicant had not completed any course of study, despite remaining in Australia. The Tribunal was therefore not satisfied that the applicant's intention for remaining in Australia was for the purposes of study, nor that he had complied with the condition of maintaining no more than a two-month gap in enrolment. While acknowledging potential hardship, the Tribunal exercised its discretion to cancel the visa.

The Tribunal affirmed the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.