Deol (Migration)

This matter concerned an appeal against the Minister's decision to cancel the applicant's Subclass 573 Higher Education Sector visa. The applicant, who had been granted the visa based on enrolment in a higher education course, was found by the delegate to have breached condition 8516 of his visa by ceasing to be enrolled in a qualifying course of study. The Tribunal was required to determine whether the ground for cancellation existed and, if so, whether the discretion to cancel the visa should be exercised.

The primary legal issue was whether the applicant had failed to comply with condition 8516, which mandates the continued satisfaction of primary criteria for the visa, including maintaining enrolment in a specified course. The Tribunal also had to consider whether, having found a breach, it was appropriate to exercise the discretion to cancel the visa, taking into account all relevant circumstances, including departmental policy and the applicant's personal situation.

The Tribunal found that the ground for cancellation did exist, as the applicant had ceased enrolment in a course that met the criteria for his visa subclass. However, in considering the exercise of discretion, the Tribunal had regard to the applicant's evidence. This included his struggles with the original course due to differences in educational systems and his youth, significant health issues that resurfaced, and reliance on advice from a migration agent regarding a new study pathway. The Tribunal noted that the applicant had actively engaged in studies since his arrival, had paid substantial fees, and believed he was complying with his visa conditions based on the agent's advice. The Tribunal concluded that, in light of these 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 Subclass 573 Higher Education Sector visa.