Devgan (Migration)

The Administrative Appeals Tribunal reviewed a decision by a delegate of the Minister for Home Affairs to cancel the applicant's subclass 500 student visa. The cancellation was based on the applicant's alleged failure to maintain enrolment in a registered course that would lead to a qualification at the same or a higher Australian Qualifications Framework (AQF) level than the course for which the visa was granted.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202(2)(b) of Schedule 8 to the Migration Regulations 1994. This condition requires a student visa holder to maintain enrolment in a registered course that, upon completion, results in an AQF qualification at a level equal to or higher than the original course of study. If such a breach occurred, the Tribunal also had to consider whether the visa should be cancelled under section 116(1) of the Migration Act 1958.

The Tribunal found that the applicant's visa was granted for a Master of Professional Accounting (AQF level 9). However, the applicant's enrolment in this course was cancelled by the education provider, and their subsequent enrolment was in a Diploma in Hospitality Management (AQF level 5). The applicant argued that they were unaware that changing courses could lead to visa cancellation, experienced study difficulties and mental anguish, and intended to return home after completing their studies. Despite these submissions, the Tribunal concluded that the applicant had failed to maintain enrolment in a course at the required AQF level, thereby breaching visa condition 8202(2)(b). The Tribunal affirmed the delegate's decision to cancel the applicant's visa.