Gaddam (Migration)

The Administrative Appeals Tribunal considered the cancellation of the applicant's Subclass 500 (Student) visa. The applicant had been granted the visa to undertake a Master of Information Technology course at Australian Qualifications Framework (AQF) Level 9. However, the applicant subsequently enrolled in a Graduate Diploma of Management course, which is at AQF Level 8. The Department of Home Affairs had cancelled the applicant's visa on the grounds that they had failed to maintain enrolment in a course at the same or a higher AQF level than that for which the visa was granted, thereby breaching condition 8202(2)(b) of the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202(2)(b) of their student visa by enrolling in a lower-level AQF course. This condition requires a student visa holder to maintain enrolment in a registered course that will provide a qualification at the same or a higher AQF level than the course for which the visa was originally granted. The Tribunal was also required to consider whether, having found a breach, it should exercise its discretion to cancel the visa.

The Tribunal found that the applicant had indeed breached condition 8202(2)(b) as they had enrolled in a Graduate Diploma of Management (AQF Level 8) after being granted a visa for a Master of Information Technology (AQF Level 9). The applicant admitted these facts and did not dispute that there were grounds for cancellation. However, the Tribunal considered the applicant's explanation for the change in enrolment, which included failing subjects in the Master's course, being unable to gain entry into other Master's programs, and receiving incorrect advice regarding the Graduate Diploma course as a pathway to a Master's degree. The Tribunal concluded that while a breach had occurred, the applicant should be granted a last chance to complete their Master's degree.

Consequently, the Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel the visa.