ALTHEFAIRI (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Student (Temporary) (Class TU) visa, Subclass 573 (Higher Education Sector), held by the applicant, Mr Althefairi. The dispute arose from the applicant's failure to maintain enrolment in a course of study that satisfied the criteria for his visa, leading to the Minister's decision to cancel his visa. The Tribunal was tasked with reviewing this cancellation decision.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was established, and if so, whether the discretion to cancel the visa should be exercised. Specifically, the Tribunal had to determine if the applicant had failed to comply with visa condition 8516, which requires the holder to continue to satisfy the primary or secondary criteria for the grant of the visa. This condition was engaged by the applicant ceasing to be enrolled in a Higher Education Sector course.

The Tribunal reasoned that the applicant had indeed breached condition 8516 by not maintaining enrolment in a qualifying course, as evidenced by his enrolment in a Diploma of Engineering when he held a Higher Education Sector visa. While the applicant claimed an honest mistake regarding his enrolment status and a pathway to a Bachelor of Computer Engineering, the Tribunal found that he had failed to maintain enrolment in a registered course of study. Despite acknowledging potential limited hardship to the applicant, the Tribunal concluded that his intention to study at the Higher Education level was not sufficiently demonstrated, and he had not complied with his visa conditions.

Consequently, the Tribunal affirmed the decision to cancel the applicant's Subclass 573 Higher Education Sector visa.