1701744 (Migration)

This matter concerned an application for review of a decision to cancel the Subclass 573 Higher Education Sector visa held by the applicant. The applicant had been enrolled in a higher education course but had voluntarily withdrawn from it to pursue trade training. The core of the dispute was whether the applicant had failed to maintain enrolment in a registered higher education course, thereby triggering the cancellation provisions of the *Migration Act 1958* (Cth).

The legal issues before the court were whether the applicant had failed to maintain enrolment in a registered higher education course as required by the visa conditions, and consequently, whether the delegate's decision to cancel the visa was correct. The court was also required to consider whether the cancellation would breach any international obligations, including non-refoulement and the best interests of children as a primary consideration, although the Tribunal placed low weight on these aspects.

The Tribunal accepted that the applicant had a gambling problem and had sought counselling, evidenced by letters from financial and therapeutic counsellors and a self-exclusion order from a casino. However, the Tribunal was not satisfied that the applicant had attempted self-harm, as no medical evidence was provided to substantiate this claim beyond an emergency department attendance. Crucially, the applicant's stated intentions regarding his studies were inconsistent. While initially claiming a desire to study Engineering and return to India, he later indicated a preference for professional welding qualifications, supported by a period of employment in that field, though without documentary evidence. This inconsistency, coupled with his withdrawal from the higher education course, led the Tribunal to conclude that the applicant had not complied with the conditions of his visa.

The Tribunal affirmed the delegate's decision to cancel the applicant's visa.