Brar (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 573 Higher Education Sector visa granted to the applicant. The cancellation was based on the applicant's failure to maintain enrolment in a Higher Education Sector course, which was a condition of their visa. The applicant had ceased enrolment in a Master of Cyber Security course and subsequently sought to re-enrol in other courses.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was established, specifically whether the applicant had complied with condition 8516, which mandates the continuation of satisfying the criteria for the visa grant, including maintaining enrolment. If the ground for cancellation was established, the Tribunal then had to consider whether, in the exercise of its discretion, the visa should be cancelled, taking into account all relevant circumstances.

The Tribunal found that the applicant had indeed failed to maintain enrolment in a Higher Education Sector course, thus establishing the ground for cancellation. However, the Tribunal then considered the applicant's circumstances in exercising its discretion. The applicant explained that their initial enrolment issues stemmed from failing an English language program required for their Master's course, leading them to seek advice from an education consultant and change their field of study. The Tribunal noted the applicant's subsequent enrolments in various Diploma and Certificate level courses, their successful completion of some of these, and their current aspirations to pursue further vocational and business studies. The Tribunal also took into account the applicant's stated difficulties, including anxiety and depression, exacerbated by the cancellation process.

Ultimately, the Tribunal concluded that, considering the applicant's efforts to re-enrol, their subsequent study pursuits, and their overall circumstances, the visa should not be cancelled. The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's visa.