HIRUNNIL (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Student (Temporary) (Class TU) visa, subclass 573 (Higher Education Sector), was cancelled. The dispute arose because the applicant ceased to be enrolled in a registered course of study, which the Department of Immigration and Border Protection considered a breach of her visa conditions. The applicant sought review of this cancellation decision.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8516 of Schedule 8 to the Migration Regulations 1994, which requires a visa holder to continue to be a person who would satisfy the primary or secondary criteria for the grant of their visa. If a breach was found, the Tribunal also had to consider whether to exercise its discretion to cancel the visa.

The Tribunal reasoned that the applicant had failed to maintain enrolment in a registered course of study for approximately eleven months, thereby ceasing to meet the criteria for a Higher Education Sector visa. This failure constituted a breach of condition 8516. In considering the discretion to cancel the visa, the Tribunal acknowledged the applicant's claim of receiving poor advice from her agent and the potential for some hardship. However, it found that the applicant had not provided specific evidence of hardship and had not demonstrated an attempt to re-enrol in a registered course after receiving the notice of intention to cancel. The Tribunal concluded that the applicant's failure to maintain enrolment could not be solely attributed to the agent's advice and that her present intention was not to remain in Australia for the purpose of study.

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