Kamau (Migration)

This matter concerned an appeal by a student visa holder against the cancellation of their Subclass 500 (Student) visa. The applicant had been granted the visa on the basis of enrolment in a Bachelor of Nursing, an Australian Qualifications Framework (AQF) Level 7 qualification. However, the applicant subsequently ceased enrolment in this course and enrolled in courses at AQF Levels 3 and 5. The Department of Immigration and Border Protection issued a Notice of Intention to Consider Cancellation (NOICC) due to the applicant's failure to comply with visa condition 8202(2)(b), which requires maintaining enrolment in a registered course leading to a qualification at the same or higher AQF level as the original course of study. The Administrative Appeals Tribunal (AAT) considered whether to affirm the cancellation decision.

The primary legal issue before the Tribunal was whether the applicant had breached visa condition 8202(2)(b) and, if so, whether the discretion to cancel the visa should be exercised. The Tribunal was required to determine if the applicant's enrolment in lower-level courses constituted a failure to maintain enrolment in a registered course that would provide a qualification at the same or higher AQF level as the Bachelor of Nursing. Furthermore, the Tribunal had to consider various factors in exercising its discretion, including the purpose of the applicant's stay, any compelling reasons for remaining in Australia, the extent of compliance with other visa conditions, potential hardship, circumstances of non-compliance, the applicant's conduct towards the Department, and any mandatory legal consequences or breaches of international obligations arising from cancellation.

The Tribunal found that the applicant had breached condition 8202(2)(b) of her visa, as her enrolment in AQF Level 3 and 5 courses did not meet the requirement of maintaining enrolment in a course leading to a qualification at the same or higher AQF level as her original Bachelor of Nursing course. The Tribunal noted that the applicant had not provided evidence to substantiate claims of financial and psychological stress as reasons for the change in study, nor had she attended the hearing to present further information. While acknowledging the applicant's compliance with other visa conditions and the lack of adverse conduct towards the Department, the Tribunal weighed these factors against the significant breach of the visa condition and the applicant's failure to fulfil the purpose of her stay in Australia. The Tribunal concluded that, on balance, the circumstances warranted the exercise of discretion to cancel the visa.

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