Ketu (Migration)

This matter concerned an appeal by the applicant against the cancellation of his Student (Temporary) (Class TU) visa, subclass 500. The applicant had been enrolled in a master's degree course (AQF level 9) but subsequently discontinued these studies and enrolled in vocational courses, the highest of which was at AQF level 5. The Administrative Appeals Tribunal, constituted by Member Wendy Banfield, was required to determine whether the applicant had breached condition 8202 of the Migration Regulations 1994 and, if so, whether the decision to cancel his visa should be affirmed.

The primary legal issue before the Tribunal was whether the applicant had complied with condition 8202 of Schedule 8 to the Migration Regulations 1994. This condition requires a student visa holder to maintain enrolment in a registered course that, upon completion, will provide a qualification at the same or a higher AQF level than the course for which the visa was granted. The Tribunal also considered the exercise of discretion regarding the cancellation of the visa, having found a breach of the conditions.

The Tribunal reasoned that the applicant had breached condition 8202(2)(b) by discontinuing his master's degree studies and enrolling in vocational courses at a lower AQF level. A conditional offer of enrolment in a master's degree did not constitute actual enrolment, and the applicant's stated desire to study auto-mechanics and start his own business, while practical, did not demonstrate a compelling need to remain in Australia. The Tribunal found that the applicant's changed study plans did not satisfy the requirement of maintaining enrolment in a course at the same or a higher AQF level.

Consequently, the Tribunal affirmed the decision to cancel the applicant's visa, finding that he had failed to comply with a condition of his visa and that there was no compelling need for him to remain in Australia. The Tribunal concluded that the circumstances as a whole warranted the cancellation of the visa.