Jepchumba (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Subclass 500 (Student) visa. The applicant, a citizen of Kenya, had been granted the visa to study a Bachelor of Science (Nursing), an Australian Qualifications Framework (AQF) Level 7 course. The Department of Home Affairs cancelled her visa on the basis that she had failed to maintain enrolment in a registered course that would provide a qualification at the same or a higher AQF level than her original course, thereby breaching condition 8202(2)(b) of the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the applicant had complied with condition 8202(2)(b) of her student visa. This condition requires a student visa holder to maintain enrolment in a registered course that, upon completion, will result in a qualification at the same or a higher AQF level than the course for which the visa was originally granted. The Tribunal also had to consider whether, having found a breach of this condition, there were compelling reasons not to cancel the visa.

The Tribunal found that the applicant had not complied with condition 8202(2)(b). Her initial enrolment in a Bachelor of Science (Nursing) (AQF Level 7) was cancelled, and subsequent enrolments in a Bachelor of Science (Biomedical Science) and a Diploma of Science (Health Studies) also did not result in maintained enrolment at the required AQF level. While she later enrolled in a Certificate III and Diploma of Early Childhood Education and Care (AQF Level 5) and a Bachelor of Community Services (AQF Level 7), the Tribunal determined that the initial breach of maintaining enrolment at the appropriate level had occurred. However, after considering the applicant's circumstances, including her progress in her current Bachelor of Community Services course, the significant financial investment made, and the lack of a comparable course in Kenya, the Tribunal exercised its discretion.

The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 500 (Student) visa.