Kaur (Migration)

The applicant, Ms Kaur, sought review of the Minister's decision to cancel her Student (Temporary) (Class TU) visa, Subclass 573 (Higher Education Sector). The cancellation was based on the ground that she had ceased to be enrolled in a higher education course, thereby failing to continue to satisfy the primary criteria for the grant of her visa, and consequently breaching condition 8516 of her visa.

The Tribunal was required to determine whether the ground for cancellation under s 116(1)(b) of the Migration Act 1958 (Cth) was made out, and if so, whether the discretion to cancel the visa should be exercised. Specifically, the Tribunal considered whether the applicant's enrolment in a Graduate Diploma in Public Health and subsequent Master of Public Health constituted the principal course of study required by cl.573.231, and whether ceasing enrolment in this course, even with subsequent re-enrolment in other courses, constituted a breach of condition 8516.

The Tribunal found that the applicant had indeed breached condition 8516 by ceasing to be enrolled in the specified higher education course, as condition 8516 requires the visa holder to continue to satisfy the primary criteria for the visa at all times. However, the Tribunal then exercised its discretion not to cancel the visa. It had regard to the applicant's circumstances, including her prior tertiary education in India, her genuine intention to pursue higher education in Australia, her difficulties in adjusting to the Australian education system, and her reliance on advice from a migration agent regarding her subsequent enrolment in different courses. The Tribunal concluded that, on balance, the visa should not be cancelled.

The Tribunal set aside the decision under review and substituted a decision not to cancel Ms Kaur's Subclass 573 visa. The Tribunal noted it had no jurisdiction concerning a second applicant.