NAVEED (Migration)

This matter concerned an appeal by an applicant against the cancellation of his Student (Temporary) (Class TU) visa, Subclass 572 (Vocational Education and Training Sector). The applicant, a citizen of Pakistan, had been in Australia since 2012 on various student visas. The core of the dispute revolved around whether the grounds for cancellation under section 116(1)(fa) of the Migration Act 1958 (Cth) were met, and if so, whether the discretion to cancel the visa should be exercised.

The Tribunal was required to determine if the applicant was a "genuine student" as contemplated by section 116(1)(fa)(i) of the Act, or if he had engaged in conduct not contemplated by the visa under section 116(1)(fa)(ii). If these grounds were established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, having regard to all relevant circumstances, including government policy and matters raised by the applicant. The legal principles applied included the interpretation of "genuine student" as established in cases such as *MIMA v Hou* [2002] FCA 574, and the consideration of factors relevant to the exercise of discretionary powers under the Act.

The Tribunal found that the grounds for cancellation were met. The applicant's enrolment in an Advanced Diploma of Business was cancelled due to non-payment of fees on 16 March 2016. Subsequently, several other course enrolments were cancelled for non-commencement of study by 22 September 2016. While the applicant later enrolled in new courses, these actions indicated a failure to genuinely undertake studies to obtain qualifications, a fundamental breach of student visa conditions. Although the Tribunal acknowledged potential financial and emotional hardship, it found that the circumstances surrounding the grounds for cancellation weighed heavily in favour of exercising the discretion to cancel the visa.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's visa. The Tribunal concluded that the applicant had ceased to be a genuine student and that the circumstances of his non-compliance with visa conditions justified the cancellation.