Zhang (Migration)

This matter concerned an appeal by Mr Zhang against the cancellation of his Student (Temporary) (Class TU) visa, subclass 573 Higher Education Sector. The visa was cancelled by the delegate on the basis that Mr Zhang was not a genuine student, as evidenced by a lack of academic progress and an extensive study gap since his arrival in Australia in August 2015.

The primary legal issue before the Tribunal was whether the ground for cancellation under s 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. Section 116(1)(fa)(i) permits the Minister to cancel a visa if satisfied that the holder of a student visa is not, or is likely not to be, a genuine student. The Tribunal considered the prescribed matters under s 116(1A) and r 2.43 of the Migration Regulations 1994, which include the holder's academic progress and engagement with their course of study.

The Tribunal found that Mr Zhang had not successfully completed any courses since his arrival and had only studied for a limited period. This, coupled with a substantial period of non-study while remaining in Australia on a visa intended for study, led the Tribunal to be satisfied that the ground for cancellation existed. In considering the exercise of discretion, the Tribunal acknowledged Mr Zhang's personal circumstances, including his marriage to an Australian permanent resident and the birth of his son, which created a compelling need to remain in Australia. However, the Tribunal noted that Mr Zhang came from a financially stable family and that alternative visa options might be available. Ultimately, the Tribunal concluded that the circumstances as a whole warranted the cancellation of the visa.

The Tribunal affirmed the decision to cancel Mr Zhang’s visa.