Khan (Migration)

This matter concerned an appeal by the applicant against the cancellation of his Subclass 573 Higher Education Sector visa. The applicant had been granted the visa on 5 February 2014, which was subject to condition 8516, requiring him to maintain eligibility for the visa granted. The Department of Immigration and Border Protection had issued a Notice of Intention to Consider Cancellation (NOICC) on 11 October 2017, alleging a breach of this condition due to the cancellation of his enrolment in a registered course.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8516 of his visa. This required the Tribunal to determine if the applicant had ceased to meet the criteria for the grant of the visa, specifically concerning his enrolment in a principal course of study as stipulated by Schedule 2 to the Migration Regulations 1994. The Tribunal also had to consider whether, having found a ground for cancellation, it should exercise its discretion to cancel the visa, taking into account all relevant circumstances.

The Tribunal found that the applicant's enrolment in a Bachelor of Business course was cancelled on 3 February 2017 due to unsatisfactory course progress, as evidenced by information from the Provider Registration and International Student Management System (PRISMS). This cancellation meant the applicant no longer satisfied the primary criteria for his visa, thereby breaching condition 8516. While the applicant did not dispute the existence of this ground for cancellation, he requested that his visa not be cancelled, citing extenuating circumstances including ongoing medical conditions of depression and anxiety, a motor vehicle accident causing back pain, and the death of his grandfather. The Tribunal acknowledged these circumstances but, on balance, concluded that the visa should be cancelled.

The Tribunal affirmed the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.