1600657 (Migration)

This matter concerned an application to the Tribunal to review a decision to cancel the applicant's visa. The applicant had been granted a Student visa (Subclass 573) which was subsequently cancelled by the Minister under section 116(1)(b) of the Migration Act 1958 (Cth) on the basis that the applicant had failed to comply with a condition of their visa. The Tribunal was required to determine whether the ground for cancellation existed and, if so, whether the discretion to cancel the visa should be exercised.

The primary legal issue before the Tribunal was whether the applicant had complied with visa condition 8516, which requires the holder to continue to satisfy the criteria for the grant of their visa. This condition, in the context of a Subclass 573 visa, necessitated the applicant being enrolled in, or having a current offer of enrolment in, a principal course of study of a specified type, or meeting specific criteria for eligible higher degree students, including English language proficiency, educational qualifications, and financial capacity. The Tribunal also considered the exercise of the Minister's discretion to cancel the visa, having regard to various factors including the applicant's stated intentions, compliance history, potential hardship, and any relevant government policy.

The Tribunal found that the ground for cancellation under section 116(1)(b) was made out. While the applicant had initially been enrolled in a Bachelor of Accounting, this enrolment was cancelled when the applicant changed to a course in a different sector. The applicant subsequently enrolled in and successfully completed a Certificate IV in Business and was making satisfactory progress in an Advanced Diploma of Leadership and Management. The Tribunal considered the applicant's submissions regarding her intention to study and the circumstances of her course changes. After weighing these factors against the relevant government policy guidelines, the Tribunal affirmed the decision to cancel the applicant's visa.