Cheng (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Subclass 500 (Student) visa was cancelled. The cancellation was based on the applicant's alleged failure to maintain enrolment in a registered course at the same or a higher Australian Qualifications Framework (AQF) level than the course for which the visa was originally granted, thereby breaching condition 8202 of the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the applicant had complied with condition 8202 of the Migration Regulations. Specifically, the Tribunal had to determine if the applicant's enrolment in a Diploma of Interpreting (AQF Level 5) after her Bachelor of Commerce (Honours) course was cancelled constituted a breach of the requirement to maintain enrolment in a course at the same or a higher AQF level. The Tribunal also had to consider whether to exercise its discretion to cancel the visa, even if a breach was found.

The Tribunal found that the applicant's visa was granted for a Bachelor of Commerce (Honours) course, an AQF Level 8 qualification. After her enrolment in this course was cancelled by the university due to a lack of necessary skills for the research project, she enrolled in and completed a Diploma of Interpreting, an AQF Level 5 qualification. As the applicant was not a defence, foreign affairs, or secondary exchange student, and her new enrolment was not at AQF Level 9 or 10, she did not meet the requirements of condition 8202(2)(b). However, the Tribunal then considered its discretion to cancel the visa. It had regard to the applicant's circumstances, including her age, family background, prior educational history in Australia, and her stated confusion regarding her future study path after discontinuing her Honours course. The Tribunal concluded that, in light of these circumstances, the visa should not be cancelled.

Consequently, the Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel her Subclass 500 (Student) visa.