Tran (Migration)

The Administrative Appeals Tribunal considered the case of Tran, an applicant whose Subclass 573 Higher Education Sector visa was cancelled. The dispute centred on whether the grounds for cancellation under section 116(1)(fa) of the Migration Act 1958 (Cth) were made out, and if so, whether the discretion to cancel the visa should be exercised. The Tribunal, constituted by Member Brendan Darcy, affirmed the decision to cancel the applicant's visa.

The primary legal issue before the Tribunal was to determine if the applicant was not, or was likely not to be, a genuine student, or if they had engaged in conduct not contemplated by the visa, as per section 116(1)(fa) of the Act. If this ground was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, taking into account all relevant circumstances, including government policy.

The Tribunal found that the applicant had not studied for a considerable period and had significantly changed educational pathways since arriving in Australia. Evidence from the Provider Registration and International Students Management System (PRISMS) and a cancelled Confirmation of Enrolment (CoE) indicated a lack of genuine intention to commence or complete a higher education course. The applicant's explanations for their lack of study, including weak English and a desire to deceive parents for financial support, were given little weight. The Tribunal concluded that the ground for cancellation under section 116(1)(fa) was satisfied.

Having found the ground for cancellation to exist, the Tribunal exercised its discretion to affirm the cancellation. The Tribunal was not satisfied that the applicant's claimed aspirations for study and a career in hotel management were genuine, given their admitted disengagement from studies and their explanation for re-enrolling solely to maintain parental financial support. No further evidence was presented by the applicant to persuade the Tribunal against cancellation.