Zhan (Migration)

This matter concerned an appeal by the applicant, Zhan, against the decision to cancel her Student (Temporary) (Class TU) visa, Subclass 573 Higher Education Sector. The Minister had cancelled the visa under section 116(1)(fa)(i) of the Migration Act 1958 (Cth) on the ground that the applicant was not a genuine student. The applicant had been granted the visa to study a Bachelor of Education (Honours) at Monash University, but had only completed English language courses and had not studied at a higher education level since entering Australia.

The primary legal issue before the Tribunal was 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 was required to consider whether the applicant was a genuine student, having regard to the prescribed matters under section 116(1A) and regulation 2.43 of the Migration Regulations 1994 (Cth).

The Tribunal reasoned that the applicant had not studied at a higher education level as required by her visa, having only completed English courses. Furthermore, she had an extensive period of over a year where she was not studying, and had ceased her studies on multiple occasions. The Tribunal found that the applicant had not provided evidence of a compelling need to remain in Australia, nor had she demonstrated any degree of hardship that would be caused by her visa cancellation. While there was no evidence of non-compliance with visa conditions, the Tribunal also noted the applicant's lack of adequate effort to contact the Department prior to the cancellation. The Tribunal concluded that the ground for cancellation was established and that the discretion to cancel the visa should be exercised.

The Tribunal affirmed the decision to cancel the applicant's Subclass 573 Higher Education Sector visa.