BAI (Migration)

This matter concerned an application for review of a decision to cancel the applicant’s Subclass 573 Higher Education Sector visa. The applicant had been granted the visa as a student. The cancellation was based on the applicant’s alleged failure to comply with condition 8202 of Schedule 8 to the Migration Regulations 1994, specifically by not remaining enrolled in a registered course of study since 9 October 2017. The review was heard by the Tribunal, with Joseph Lindsay presiding.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of his visa. This condition requires a visa holder to be enrolled in a registered course, and not to have been certified by their education provider as failing to achieve satisfactory course progress or attendance. If a breach of this condition was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa under s.116(1) of the Act. The Tribunal also considered whether any international obligations, such as non-refoulement or the best interests of children, would be breached by the cancellation.

The Tribunal found that the applicant had not been enrolled in a registered course of study since 9 October 2017, which was a direct contravention of condition 8202(2)(a). The applicant’s explanations for ceasing enrolment, including issues with overlapping courses and a desire not to pay double fees, were not given significant weight. The Tribunal also found no indication that cancelling the visa would breach any international obligations, noting the applicant’s statement that he did not fear anything in China apart from his parents’ disappointment and that he might be able to study successfully in China.

Having established the ground for cancellation and finding no compelling reasons against it, the Tribunal concluded that the visa should be cancelled. The Tribunal affirmed the delegate’s decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.