Phan (Migration)

This matter concerned an appeal by the applicant, Phan, against the decision of the Minister to cancel her Subclass 500 (Student) visa. The cancellation was based on the Minister’s satisfaction that the applicant was not, or was likely not to be, a genuine student, pursuant to section 116(1)(fa)(i) of the Migration Act 1958 (Cth). The applicant contended that the cancellation was not warranted, citing family medical and financial hardship as reasons for her academic difficulties and multiple course changes.

The Tribunal was required to determine whether the ground for cancellation existed and, if so, whether the discretion to cancel the visa should be exercised. Specifically, the Tribunal had to assess whether the applicant was a genuine student, considering her enrolment history, academic progress, and compliance with visa conditions. The Tribunal also had to consider the degree of hardship that cancellation might cause to the applicant and her family.

In its reasoning, the Tribunal found that the applicant had not completed any registered courses for which her visa was granted and had a significant lack of academic progress. Multiple course cancellations and a failure to provide corroborating evidence for her claimed hardships led the Tribunal to conclude that the applicant's primary intention was not to undertake study in Australia. Furthermore, the Tribunal noted substantial non-compliance with visa condition 8202(2)(b), which requires maintaining enrolment in a course at the same or higher level. While acknowledging potential hardship, the Tribunal afforded this consideration less weight than the applicant's lack of genuine student status and non-compliance.

Consequently, the Tribunal affirmed the decision to cancel the applicant’s Subclass 500 (Student) visa.