Kiarie (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of an applicant whose Student (Temporary) (Class TU) visa, subclass 500, was subject to cancellation. The dispute arose when the applicant enrolled in a course at a lower Australian Qualifications Framework (AQF) level than that for which their visa was granted, and subsequently ceased studying altogether. The AAT was required to determine whether the applicant had failed to comply with a condition of their visa and, if so, whether the visa ought to be cancelled.

The Tribunal found that the applicant had breached Condition 8202(2)(b) of the Migration Regulations 1994, which mandates that a student visa holder maintain enrolment in a registered course that, upon completion, would result in a qualification at the same or a higher AQF level than the course for which the visa was originally granted. The applicant's visa was granted for a Diploma and Bachelor of Hospitality Management (AQF Level 7), but they later enrolled in a Certificate IV in Commercial Cookery (AQF Level 4) and a Diploma of Hospitality Management (AQF Level 5) after their initial enrolments were cancelled. The Tribunal noted that the applicant had not studied since 2018 and did not intend to return to study in the short to medium term, despite having lived in Australia for a significant period while in breach of their visa conditions.

In considering the discretion to cancel the visa, the Tribunal acknowledged the applicant's difficult circumstances, including pregnancy, childbirth, and her partner's injury, which led to financial hardship and an inability to continue studies. However, the Tribunal concluded that these circumstances did not excuse the breach, as maintaining enrolment and paying fees were fundamental visa requirements. The Tribunal found that the applicant had not been a student for a considerable time and was unlikely to resume studies at the appropriate level in the foreseeable future. Consequently, the Tribunal affirmed the delegate's decision to cancel the applicant's visa.