Garg (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 at a level equivalent to or higher than the course for which the visa was granted. The applicant sought to have this cancellation decision reviewed.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202(2)(b) of the Migration Regulations 1994, which mandates maintaining enrolment in a course leading to an Australian Qualifications Framework qualification at the same or a higher level than the original course. If a breach was established, the Tribunal also had to consider whether the visa should be cancelled under section 116(1) of the Migration Act 1958. The applicant's visa was granted for a Bachelor of Accounting (AQF Level 7), but records indicated his enrolment in this course was cancelled, and he subsequently enrolled in courses at lower AQF levels, specifically a Diploma of Hospitality and Management (AQF Level 5).

The Tribunal found that the applicant had indeed breached condition 8202(2)(b) as he was not enrolled in an AQF Level 7 course or higher after his Bachelor of Accounting enrolment was cancelled. While the applicant claimed ignorance of the specific condition and expressed an intention to pursue an AQF Level 7 qualification in the future, the Tribunal noted that he did not respond to the Notice of Intention to Consider Cancellation. The Tribunal concluded that the circumstances did not engage exceptions to the condition, and therefore, the delegate's decision to cancel the visa was affirmed.