Nguyen (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Student visa was cancelled. The dispute centred on whether the grounds for cancellation existed and, if so, whether the cancellation was a discretionary exercise that should be affirmed.

The Tribunal was required to determine if the applicant was a "genuine student" for the purposes of section 116(1)(fa)(i) of the Migration Act 1958 (Cth), which permits visa cancellation if the Minister is satisfied that a student visa holder is not, or is likely not to be, a genuine student. The Tribunal also had to consider whether to exercise its discretion to cancel the visa, having regard to all relevant circumstances, including the applicant's purpose for travel and compliance with visa conditions.

The Tribunal reasoned that the applicant's lack of academic progress, having completed only four prerequisite English courses since being granted the visa in February 2016, and a lengthy period of non-study while remaining in Australia, indicated that the applicant was not a genuine student. This satisfied the ground for cancellation under section 116(1)(fa)(i). In exercising its discretion, the Tribunal found that the applicant's frequent changes in course enrolment suggested an intention to retain the visa rather than a genuine commitment to study. Furthermore, the applicant had breached visa condition 8516 by not holding a valid Confirmation of Enrolment in a bachelor-level course for approximately 16 months.

The Tribunal concluded that the weight of these considerations supported the cancellation of the applicant's Student visa and affirmed the decision to cancel.