Khan (Migration)

This matter concerned an application to review the cancellation of the applicant's Student (Temporary) (Class TU) visa, subclass 500. The applicant had been granted the visa to undertake Master's level studies at AQF Level 9. The dispute centred on whether the applicant had breached condition 8202(2)(b) of the Migration Regulations 1994, which requires a student visa holder to maintain enrolment in a course that, upon completion, leads to a qualification at the same or a higher AQF level than the course for which the visa was granted.

The Tribunal was required to determine if the applicant had complied with condition 8202(2)(b) and, if not, whether the discretion to cancel the visa should be exercised. The applicant's enrolment history revealed multiple changes and cancellations of courses, with his highest subsequent enrolment being an Advanced Diploma of Accounting, which is at AQF Level 6. This was a lower AQF level than the Master's degree for which his visa was granted.

The Tribunal found that the applicant had indeed breached condition 8202(2)(b) by enrolling in courses at a lower AQF level. In considering the exercise of discretion, the Tribunal noted the applicant's stated reasons for remaining in Australia, including fulfilling his parents' expectations and a desire to avoid returning home as a "loser." However, the Tribunal weighed these personal reasons against the applicant's sustained failure to maintain appropriate enrolment, his poor academic record, and the absence of any compelling need to remain in Australia. The Tribunal concluded that the grounds for cancelling the visa outweighed the grounds for not cancelling it.

Consequently, the Tribunal affirmed the decision to cancel the applicant's Student visa.