1933761 (Migration)

This matter concerned an application by a student visa holder to review the decision of the Department of Home Affairs to cancel their Subclass 500 (Student) visa. The applicant had been granted the visa on 1 February 2018, intending to undertake a Diploma of [Subject 1] followed by a Bachelor of [Subject 1] (Honours), which are courses at AQF Level 8. The visa was cancelled on 25 November 2019, on the basis that the applicant had breached condition 8202(2)(b) of the Migration Regulations 1994 by not maintaining enrolment in a registered course at the same or a higher AQF level than that for which the visa was granted, for the period from 6 June 2018 to the date of cancellation.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202(2)(b) of their visa, and if so, whether the discretion to cancel the visa should be exercised. Condition 8202(2)(b) requires a student visa holder to maintain enrolment in a course that, upon completion, will provide a qualification at the same or a higher AQF level than the course for which the visa was granted. The applicant admitted to not complying with this condition for a period of approximately 17 months, having transferred to lower-level, more affordable courses.

The Tribunal found that the applicant had indeed breached condition 8202(2)(b) for a substantial period. However, in considering the exercise of the discretion to cancel the visa, the Tribunal gave significant weight to the applicant's stated reasons for the non-compliance, including adjustment difficulties, study problems, and significant family hardship due to his father's stroke and resulting financial strain. The Tribunal noted the applicant's consistent study throughout his time in Australia, his completion of lower-level courses, and his intention to pursue further studies at the original AQF level.

Ultimately, the Tribunal concluded that, considering the circumstances as a whole, the visa should not be cancelled. The decision under review was set aside, and a substituted decision was made not to cancel the applicant's Subclass 500 (Student) visa.