CAI (Migration)

This matter concerned an appeal by a visa holder against the cancellation of their Student (Temporary) (Class TU) visa, subclass 573 (Higher Education Sector). The dispute arose from the visa holder's failure to maintain enrolment in a course of study, specifically their inability to complete preparatory English language courses which prevented them from commencing their Master of Business degree. The decision was made by the Tribunal.

The legal issues before the Tribunal were whether the grounds for cancellation of the visa existed under section 116(1)(b) of the Migration Act 1958 (Cth), and if so, whether the discretion to cancel the visa should be exercised in the circumstances. The Tribunal was required to determine if the applicant had complied with condition 8516 of their visa, which mandates that a visa holder must continue to satisfy the criteria for the grant of their visa.

The Tribunal reasoned that the ground for cancellation existed because the applicant had failed to maintain enrolment in a registered course of study, thereby failing to satisfy the criteria for their visa as outlined in Schedule 2 of the Migration Regulations 1994. Specifically, the applicant's enrolment in a Master of Business was cancelled due to their repeated failure to complete prerequisite English language courses. Despite re-enrolling in subsequent courses and attempting to achieve the required English proficiency, the applicant consistently failed to meet the standards necessary for admission to a Master's degree. The Tribunal considered the applicant's personal circumstances, including alleged hearing difficulties and family pressure, but found these did not outweigh the failure to meet the visa conditions.

The Tribunal affirmed the decision to cancel the applicant's visa, concluding that the cancellation was warranted given the applicant's persistent failure to comply with the conditions of their visa.