HAROON (Migration)

This matter concerned an appeal to the Tribunal regarding the cancellation of the applicant's Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa. The applicant, a 28-year-old citizen of Pakistan, had been granted the visa on 16 February 2015. The dispute arose when the Minister, pursuant to section 116(1)(b) of the Migration Act 1958 (Cth), considered cancelling the visa on the grounds that the applicant had breached a condition by failing to maintain enrolment in a registered course for a significant period.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(b) of the Act was established, and if so, whether the discretion to cancel the visa should be exercised. Section 116(1)(b) permits cancellation if the Minister is satisfied that the visa holder did not comply with a condition of their visa. In this case, the relevant condition was 8516, which requires the holder to continue to satisfy the primary criteria for the grant of the visa. The Tribunal also considered the applicant's claims regarding his intentions and circumstances in exercising its discretion.

The Tribunal found that the applicant had breached condition 8516, as he had failed to maintain enrolment in a registered course for approximately 17 months, as indicated by PRISMS records. The applicant conceded this failure. While this ground did not mandate cancellation, the Tribunal proceeded to consider the exercise of discretion. The Tribunal noted the applicant's history of multiple course enrolments and cancellations, his slow academic progress, and his claimed intention to study at degree level. Despite accepting that the applicant had completed some courses, the Tribunal was not satisfied that his present intention was to remain in Australia for the purpose of studying a course appropriate to the visa granted, particularly given his prolonged period of non-enrolment and multiple cancelled degree course enrolments.

Consequently, the Tribunal affirmed the decision to cancel the applicant's Subclass 573 Higher Education Sector visa.