Suwal (Migration)

This matter concerned an appeal to the Administrative Appeals Tribunal regarding the cancellation of the applicant's Student (Temporary) (Class TU) visa, Subclass 573 Higher Education Sector. The applicant had been granted the visa to study in Australia, but the Minister had cancelled it on the grounds that the applicant was not, or was likely not to be, a genuine student.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(fa)(i) of the Migration Act 1958 (Cth) was made out, and if so, whether the discretion to cancel the visa should be exercised. The legal issue revolved around the interpretation of "genuine student" in the context of the applicant's academic progress and enrolment history.

The Tribunal found that the applicant had failed to complete any course of study since being granted the visa, had experienced significant periods of non-study, and had repeatedly had his enrolment cancelled due to non-payment of fees. While acknowledging the applicant's submission regarding difficulties adjusting to life in Australia and the impact of the Nepal earthquake, the Tribunal found these circumstances were not beyond his control and did not constitute extenuating circumstances. The Tribunal applied the principles established in *MIMA v Hou* [2002] FCA 574, considering the applicant's overall conduct and engagement with his studies.

The Tribunal affirmed the decision to cancel the applicant's visa, concluding that the weight of the considerations supported the cancellation.