Zia (Migration)

The Administrative Appeals Tribunal considered the case of Zia, an applicant whose Subclass 573 Higher Education Sector visa was cancelled by the Department of Immigration and Border Protection. The dispute centred on whether the applicant was a "genuine student" as required by the Migration Act 1958 (Cth) and its associated regulations.

The Tribunal was required to determine if the ground for cancellation under s 116(1)(fa)(i) of the Act, which relates to a student visa holder not being, or not likely to be, a genuine student, was made out. 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.

The Tribunal reasoned that the applicant had not acted as a genuine student, citing multiple instances of course cancellations due to unsatisfactory attendance and academic progress. The applicant had also experienced an extended period of 16 months without enrolment in a registered course, despite remaining in Australia on a student visa. While acknowledging the applicant's stated financial and emotional reasons for needing an Australian qualification, the Tribunal found these were not sufficiently compelling to outweigh the evidence of non-compliance. The Tribunal applied the principles established in *MIMA v Hou* [2002] FCA 574 regarding the interpretation of "genuine student" and considered the applicant's overall study history and prolonged period of non-study.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's visa, concluding that on balance, the circumstances warranted cancellation.