Kumar (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Subclass 573 Higher Education Sector visa held by Mr. Kumar. The dispute arose because the delegate of the Minister was satisfied that Mr. Kumar had failed to continue to satisfy the criteria for the grant of his visa, which constituted a ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth).

The Tribunal was required to determine whether the ground for cancellation existed and, if so, whether to exercise its discretion to cancel the visa. Specifically, the Tribunal had to assess whether Mr. Kumar had complied with condition 8516 of his visa, which mandates that a visa holder must continue to satisfy the primary or secondary criteria for the grant of their visa. The criteria for a Subclass 573 visa, as summarised by Smith J in *Singh v Minister for Immigration & Anor* [2015] FCCA 2998, require an applicant to have a confirmation of enrolment in a relevant course of study at the time of application and decision, or to be enrolled in or have an offer of enrolment in a course specified by the Minister.

The Tribunal found that the ground for cancellation under section 116(1)(b) was made out. Mr. Kumar had enrolled in a Diploma of IT Networking and subsequently an Advanced Diploma of Leadership and Management, and a Diploma of Business, ultimately enrolling in a Bachelor of Business degree. However, the Tribunal noted that Mr. Kumar admitted to enrolling in IT courses because he believed it would increase his chances of visa grant, despite having no interest or aptitude for IT. He later sought to change to business courses, which he also admitted to pursuing because they were perceived as easier, rather than out of genuine interest. Considering these circumstances, the Tribunal concluded that Mr. Kumar had not genuinely pursued studies that met the visa criteria and therefore the visa should be cancelled. The Tribunal affirmed the decision to cancel Mr. Kumar’s visa.