Kakrecha (Migration)

This matter concerned the cancellation of the applicant's Subclass 500 (Student) visa. The dispute arose because the applicant was not enrolled in a registered course at the required Australian Qualifications Framework (AQF) level. The decision under review was made by the Tribunal.

The legal issues before the Tribunal were whether the ground for cancellation existed under section 116(1)(b) of the Migration Act 1958 (Cth), and if so, whether the discretion to cancel the visa should be exercised. Specifically, the Tribunal had to determine if the applicant had complied with condition 8202 of the Migration Regulations 1994, which requires enrolment in a registered course at the appropriate AQF level and satisfactory course progress and attendance.

The Tribunal found that the ground for cancellation was established because the applicant's enrolment in a Bachelor of Business at AQF level 7 was cancelled on 5 September 2017, and he remained unenrolled in a full-time registered course at AQF level 7 or above until 4 January 2019. While this ground did not mandate cancellation, the Tribunal considered the applicant's circumstances in exercising its discretion. These included his prior engineering qualifications and work experience, his initial intention to study a Master of Engineering, his subsequent enrolment in English and Diploma courses, and the financial difficulties faced by his father which impacted his ability to pay fees for the Bachelor of Business. The Tribunal also noted the applicant's failure in his subjects in 2017 and his inability to provide academic transcripts or evidence of his request for leave from study. Despite the applicant's subsequent enrolment in a Diploma of Hospitality Management, the Tribunal concluded that the visa should be cancelled.

The Tribunal affirmed the decision to cancel the applicant's Subclass 500 (Student) visa.