WAN (Migration)

This matter concerned an appeal to the Administrative Appeals Tribunal (the Tribunal) regarding the cancellation of the applicant's Student (Temporary) (Class TU) visa, Subclass 573 (Higher Education Sector). The dispute arose because the Department of Home Affairs was not satisfied that the applicant was a genuine student, citing poor academic progress, significant changes to educational pathways, and unsatisfactory attendance as grounds for cancellation. The applicant sought to have the cancellation decision reviewed and the three-year exclusion period set aside.

The Tribunal was required to determine whether the ground for cancellation, specifically that the applicant was not a genuine student, was established under section 116(1)(fa)(i) of the Migration Act 1958 (Cth). If this ground was established, the Tribunal then had to consider whether, in the exercise of its discretion, the applicant's visa should be cancelled, taking into account all relevant circumstances, including the applicant's submissions and the Department's policy guidelines.

The Tribunal found that the applicant was not a genuine student, based significantly on his own evidence. He admitted to not attending classes since mid-2016, preferring to socialise and play computer games, and acknowledged that he had been wasting his time. He also admitted that after ceasing to attend classes, he was no longer a genuine student and agreed that the ground for cancellation likely existed. In considering the exercise of discretion, the Tribunal noted that the applicant had not demonstrated a compelling need to remain in Australia, as he could return to China and pursue work there. While acknowledging the applicant's and his parents' desire for him to migrate to Australia, the Tribunal found this did not outweigh the established ground for cancellation. The Tribunal concluded that the circumstances did not warrant setting aside the cancellation decision.

The Tribunal affirmed the delegate's decision to cancel the applicant's visa. Consequently, the applicant remained subject to the standard three-year exclusion period from re-entering Australia.