Park (Migration)

This matter concerned an appeal by an applicant against the cancellation of their Student (Temporary) (Class TU) visa, Subclass 572 (Vocational Education and Training Sector). The Minister had formed the view that the applicant was not a genuine student, which is a ground for visa cancellation under section 116(1)(fa)(i) of the Migration Act 1958 (Cth). The applicant had initially enrolled in business and marketing courses but sought a deferment due to the death of their mother. Upon their failure to return to studies, their course was cancelled.

The Tribunal was required to determine whether the ground for cancellation, namely that the applicant was not a genuine student, was made out. This involved considering the applicant's circumstances, including their initial enrolment, the deferment of their studies, and their subsequent enrolment in theology courses at the same registered provider as their father, who was also in Australia on a student visa. The Tribunal also had to assess whether the evidence provided by the applicant adequately supported their claims of being a genuine student.

The Tribunal reasoned that the applicant had provided sufficient evidence to demonstrate they were a genuine student. This included details of their enrolment in theology courses in Perth, where they had moved to live with their father. The Tribunal noted that the applicant had provided these enrolment details to the Department in response to the notice of intention to cancel their visa. Consequently, the Tribunal found that the ground for cancellation did not exist, as there was ample evidence supporting the applicant's status as a genuine student, and insufficient evidence to satisfy a reasonable decision-maker otherwise.

The Tribunal set aside the decision to cancel the applicant's Subclass 572 visa and substituted a decision not to cancel it.