Gourav (Migration)

This matter concerned an appeal by an applicant against the cancellation of their Student (Temporary) (Class TU) visa, subclass 500. The dispute arose from 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 originally granted. The decision was made by Vanessa Plain, a member of the Tribunal.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202(2)(b) of the Migration Regulations 1994. This condition requires a student visa holder to maintain enrolment in a course that, upon completion, provides a qualification at the same or a higher AQF level than the course for which the visa was granted. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa under section 116(1) of the Migration Act 1958.

The Tribunal found that the applicant's visa was granted for the purpose of undertaking an Advanced Diploma of Leadership and Management and a Bachelor of Business (AQF Level 7). The applicant's enrolment in the Bachelor of Business was cancelled due to non-commencement. Subsequently, the applicant enrolled in a Diploma of Automotive Technology (AQF Level 5), which did not meet the requirement of maintaining an equivalent or higher AQF level. Although the applicant later enrolled in a Graduate Diploma of Management (AQF Level 8), this course commenced after the expiry of their visa. The applicant conceded they had breached condition 8202(2)(b). In exercising its discretion, the Tribunal considered the applicant's original purpose for being in Australia, which had ceased, the extent of compliance with visa conditions, and the hardship that cancellation might cause. While acknowledging some hardship, the Tribunal found no evidence of family impact in Australia or inability to study in the applicant's home country.

The Tribunal affirmed the decision to cancel the applicant's visa.