Javed (Migration)

This matter concerned an appeal by an applicant against the decision of the Department of Home Affairs to cancel his Student (Temporary) (Class TU) visa (Subclass 500). The applicant had been granted the visa on 3 November 2017. The cancellation was based on the applicant's alleged breach of condition 8202 of the Migration Regulations 1994, specifically that he was not enrolled in a registered course at the same or a higher Australian Qualifications Framework (AQF) level than the course for which his visa was granted, for the period between 8 March 2018 and the date of cancellation, 7 November 2019.

The Administrative Appeals Tribunal was required to determine whether the applicant had breached condition 8202(2)(b) of his visa. If a breach was established, the Tribunal then had to consider whether to exercise its discretion to affirm the cancellation decision. Condition 8202(2)(b) mandates that a student visa holder must maintain enrolment in a registered course that, upon completion, will provide a qualification at the same or a higher AQF level than the course for which the visa was originally granted.

The Tribunal found that the applicant had not complied with condition 8202(2)(b) for a period of 20 months, thereby breaching a condition of his visa and making it liable for cancellation under section 116(1)(b) of the Migration Act 1958. In considering the discretion to cancel, the Tribunal noted the applicant's history of varied enrolments and academic difficulties since arriving in Australia in 2014. Despite these challenges and the visa cancellation, the applicant had continued to study, including enrolling in a Bachelor of Business at AQF level 7. However, the Tribunal concluded that, considering all circumstances, the visa should be cancelled.

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