Kandel (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Student (Temporary) (Class TU) Subclass 573 visa was cancelled. The dispute arose because the applicant, after completing a diploma, did not wish to relocate to study for a degree, and their course results and perceived ability to undertake higher education were questioned. The applicant had enrolled in another diploma course in a different subject area with the intention of progressing to a degree.

The Tribunal was required to determine whether the ground for cancellation under s 116(1)(b) of the Migration Act 1958 (Cth) existed, specifically whether the applicant had failed to comply with a condition of their visa. This condition, 8516, mandates that a visa holder must continue to satisfy the criteria for the grant of their visa, which includes maintaining enrolment in a course of study. The Tribunal also had to consider whether, in the exercise of its discretion, the visa should be cancelled, having regard to all relevant circumstances.

The Tribunal reasoned that the applicant had breached condition 8516 by not maintaining enrolment in a course that met the requirements for their Subclass 573 visa. The applicant's concession that they cancelled their Bachelor of IT enrolment due to an unwillingness to relocate, and their subsequent enrolment in diploma courses rather than a higher education sector course, satisfied the ground for cancellation. In exercising its discretion, the Tribunal considered the applicant's original intention to study in Australia, their stated desire to complete degrees for opportunities in their home country, and their aspiration to join the Australian Army. However, the Tribunal found no compelling need for the applicant to remain in Australia. While acknowledging the hardship cancellation would cause, the Tribunal concluded that the fundamental breach of visa conditions, particularly the failure to maintain enrolment, weighed heavily against the applicant.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's Subclass 573 Higher Education Sector visa, finding that on balance, the considerations weighed against the applicant and the issues encountered were not sufficient to warrant the visa not being cancelled.