SHARMA (Migration)

This matter concerned an appeal by an applicant against the decision of the Minister to cancel his Subclass 573 Higher Education Sector 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 had failed to pay fees for his initial course, leading to its cancellation, and subsequently experienced issues with enrolment and course changes, including a period where his Confirmation of Enrolment (COE) was cancelled due to non-payment.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(fa)(i) of the Act was made out, and if so, whether the discretion to cancel the visa should be exercised. The Tribunal considered the applicant's explanation for his non-compliance, which included financial difficulties, a lack of understanding regarding course change procedures, and a desire to pursue a different course of study. The Tribunal also had regard to prescribed matters under regulation 2.43 of the Migration Regulations 1994, which included the applicant's participation in a course of study being deferred or suspended due to his conduct or circumstances.

In its reasoning, the Tribunal applied the principles established in *MIMA v Hou* [2002] FCA 574, which interpret the "genuine student" requirement as extending beyond mere literal compliance with visa conditions to encompass actual conduct and behaviour consistent with being a student. The Tribunal found that the applicant's history of non-payment of fees and subsequent enrolment issues indicated that he was not, or was likely not to be, a genuine student. In exercising its discretion, the Tribunal weighed factors such as the applicant's stated purpose for travel, his compliance with visa conditions, the potential hardship if the visa were cancelled, and the circumstances leading to the cancellation ground. The Tribunal concluded that the factors favouring cancellation outweighed those against it, particularly given the applicant's conduct.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's visa.