Khan (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Subclass 500 (Student) visa. The applicant, who held a Student (Temporary) (Class TU) visa, had been granted it for the purpose of undertaking a Foundation Studies course followed by a Bachelor of Engineering (Honours) at AQF Level 8. The visa was cancelled on the basis that the applicant had breached condition 8202(2)(b) of the Migration Regulations 1994 by failing to maintain enrolment in a registered course that would lead to a qualification at the same or a higher AQF level than that for which the visa was granted.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202(2)(b) and, if so, whether the discretion to cancel the visa should be exercised. Condition 8202(2)(b) requires a student visa holder to maintain enrolment in a registered course that, upon completion, will provide an Australian Qualifications Framework qualification at the same or a higher level than the course for which the visa was granted. The applicant's enrolment in the Bachelor of Engineering course was cancelled by his education provider due to non-commencement of studies, which led to a breach of condition 8202(2)(a) and subsequently condition 8202(2)(b).

The Tribunal found that the applicant had indeed breached condition 8202(2)(b) as his enrolment in the Bachelor of Engineering course had been cancelled. While the applicant provided reasons for his inability to pay increased fees, including financial hardship and unsuccessful attempts to borrow money, these did not excuse the breach. The Tribunal considered the applicant's stated intention to study in Australia and his subsequent attempts to enrol in lower-level courses, but found these claims to be general and unsupported by independent evidence, thus not demonstrating a compelling need to remain in Australia. The Tribunal weighed the seriousness of the breach, the lack of compliance with visa conditions, and the applicant's failure to demonstrate a compelling need to remain in Australia, concluding that these factors weighed in favour of cancellation.

On balance, the Tribunal affirmed the decision to cancel the applicant's visa.