ARFAN (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of ARFAN, a holder of a Student (Temporary) (Class TU) visa, subclass 500 (Student). The dispute concerned the grounds for cancellation of the applicant's visa, specifically whether he continued to satisfy the primary criteria for his visa, which required enrolment in a higher education sector course.

The legal issue before the Tribunal was whether the applicant's enrolment in a Diploma of Accounting course, rather than a higher education level course as initially intended, constituted a failure to continue to satisfy the primary criteria for his student visa, thereby providing grounds for cancellation under s 116(1)(b) of the Migration Act 1958 (Cth). The Tribunal was required to assess whether the applicant had complied with visa condition 8516 and the relevant provisions of the Migration Regulations 1994 concerning enrolment in a course at the requisite level.

The Tribunal reasoned that by enrolling in a Vocational Education and Training (VET) sector level course instead of a higher education level course, the applicant had demonstrated an intention not to pursue the studies for which his visa was granted. The Tribunal found that the applicant had not complied with condition 8516 as he was not enrolled in a bachelor's or master's degree course, nor a course specified under the relevant regulations. This failure to maintain enrolment in a course meeting the primary criteria for his visa subclass meant he no longer satisfied those criteria. The Tribunal concluded that the applicant had significantly altered his educational pathway without notification, indicating a lack of intention to study at the higher degree level, and was therefore no longer an eligible higher degree student.

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