1606434 (Migration)

This matter concerned an application to the Administrative Appeals Tribunal (AAT) to review the Minister's decision to cancel the applicant's Subclass 573 Higher Education Sector visa. The dispute arose because the applicant's enrolment in a registered course was cancelled by the Perth Institute of Business and Technology (PIBT) due to unsatisfactory attendance, which the applicant contended was a result of clashes between his casual work hours and class times.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) existed, and if so, whether to exercise its discretion to cancel the visa. Specifically, the Tribunal had to consider if the applicant's failure to maintain enrolment in a registered course, as required by condition 8202(2)(a) of his visa, constituted a valid ground for cancellation, and then assess the relevant circumstances and government policy in deciding whether to uphold the cancellation.

The Tribunal found that the ground for cancellation existed, as the applicant had not been enrolled in a registered course since November 2015, and his attendance at PIBT had fallen below the required threshold. While acknowledging the applicant's explanation regarding work commitments and difficulties with class scheduling, the Tribunal concluded that the primary purpose of a Subclass 573 visa is study, and that study obligations should be prioritised over work. The Tribunal found the non-enrolment to be a significant breach, not occurring in circumstances beyond the applicant's control, and without extenuating or compassionate circumstances. After considering all relevant factors, including the lack of hardship evidence provided by the applicant, the Tribunal affirmed the decision to cancel the visa.