Shrestha (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Student (Temporary) (Class TU) visa, subclass 573 Higher Education Sector, was cancelled. The dispute centred on whether the applicant was a genuine student, a ground for visa cancellation under section 116(1)(fa)(i) of the Migration Act 1958 (Cth).

The Tribunal was required to determine if the ground for cancellation existed and, if so, whether to exercise its discretion to cancel the visa. Specifically, the Tribunal had to assess whether the applicant was, or was likely to be, a genuine student, considering prescribed matters under section 116(1A) and regulation 2.43 of the Migration Regulations 1994 (Cth). The Tribunal also had to consider all relevant circumstances, including the applicant's explanations for their academic history and any hardship that might result from cancellation.

The Tribunal reasoned that the applicant had not completed any registered courses since their visa was granted in 2016. Their enrolments had repeatedly been cancelled due to non-payment of fees, and for a significant period, they held no enrolment at all. The applicant's explanations for these issues, including financial difficulties, loneliness, and a desire to study cookery, were found to be insufficient to overcome the lack of academic progress. The Tribunal concluded that the applicant's primary intention was not to undertake study in Australia, thereby satisfying the ground for cancellation under section 116(1)(fa)(i).

The Tribunal affirmed the decision to cancel the applicant's visa, finding that the circumstances as a whole weighed in favour of cancellation.