Bhairo (Migration)

This matter concerned an appeal by an applicant against the cancellation of their Student (Temporary) (Class TU) visa. The dispute arose from the applicant's enrolment in a course at a lower Australian Qualifications Framework (AQF) level than that for which their visa was originally granted. The decision was made by the Tribunal, presided over by P. Adami.

The primary legal issue before the Tribunal was whether the applicant had failed to comply with Condition 8202(2)(b) of the Migration Regulations 1994, which requires a student visa holder to maintain enrolment in a registered course that, upon completion, would provide a qualification at the same or a higher AQF level than the course for which the visa was granted. The Tribunal also had to consider whether, in light of the non-compliance, there was a compelling need for the applicant to remain in Australia as a student and the extent of hardship that might result from cancellation.

The Tribunal reasoned that the applicant's initial visa was granted for a Master of Business (AQF Level 9), but they subsequently enrolled in a Certificate IV in Commercial Cookery and a Diploma of Hospitality Management (AQF Level 5). This constituted a "downgrading" of their course of study, directly contravening Condition 8202(2)(b). The Tribunal applied the principle from *Zhao v Minister for Immigration & Multicultural Affairs* that the decision-maker must be satisfied that a ground for cancellation is established, rather than relying on the visa holder failing to rebut a potential ground. Despite acknowledging the applicant's sincerity and carefully considering the circumstances, the Tribunal found that the factors favouring cancellation outweighed those against it, concluding that there was no compelling need for the applicant to remain in Australia as a student.

Consequently, the Tribunal affirmed the decision to cancel the applicant's visa.