1604722 (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Subclass 573 Higher Education Sector visa held by the first applicant. The dispute arose because the applicant had changed her course of study from a higher education sector course to a vocational course, which was not permitted under her visa conditions. The second applicant was also involved, though the Tribunal's jurisdiction concerning this applicant was limited.

The primary legal issue before the Tribunal was whether the ground for visa cancellation under section 116(1)(b) of the Migration Act 1958 existed, specifically whether the applicant had failed to comply with a condition of her visa, namely condition 8516. Condition 8516 requires a visa holder to continue to satisfy the criteria for the grant of their visa. The Tribunal also had to consider whether to exercise its discretion to affirm the cancellation decision, having regard to all relevant circumstances.

The Tribunal reasoned that the applicant had breached condition 8516 because she was no longer enrolled in a course that met the requirements of subclauses 573.231 or 573.223(1A) of the Migration Regulations 1994. While the applicant argued that she had received incorrect advice from her education agent regarding the change of course, the Tribunal found that the applicant bore the ultimate responsibility for ensuring compliance with her visa conditions. The Tribunal noted the significant period of non-compliance (approximately 19 months) and expressed doubt as to whether the applicant had ever genuinely intended to study a higher education sector course. Despite acknowledging some hardship to the applicants and the applicant's continuous study history in other fields, the Tribunal concluded that these factors did not outweigh the seriousness of the breach and the circumstances surrounding it.

The Tribunal affirmed the decision to cancel the first named applicant’s Subclass 573 Higher Education Sector visa. The Tribunal further determined that it had no jurisdiction with respect to the second named applicant.