Kumar (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Subclass 573 Higher Education Sector visa was cancelled. The applicant had initially been granted the visa to undertake a Bachelor of Information Technology course in Australia. However, after failing subjects in his first semester, his enrolment was cancelled. He subsequently enrolled in various other courses, including baking and a Bachelor of Business, but the Tribunal found that he was no longer an eligible higher degree student as required by the visa conditions.

The primary legal issue before the Tribunal was whether the grounds for visa cancellation under section 116 of the Migration Act 1958 (Cth) were made out, and if so, whether the discretion to cancel the visa should be exercised. Specifically, the Tribunal had to determine if the applicant had complied with condition 8516 of his visa, which requires the holder to continue to satisfy the criteria for the grant of the visa. This involved assessing whether his subsequent enrolments in courses other than a higher education sector course meant he no longer met the requirements for his subclass 573 visa.

The Tribunal reasoned that the applicant had failed to comply with condition 8516 because he was no longer enrolled in a course that met the requirements for a Subclass 573 visa. While the applicant argued he was unaware of the specific course type requirements and believed he was complying with his visa conditions, the Tribunal found that his enrolment in non-higher education courses meant the grounds for cancellation under section 116(1)(b) were satisfied. In exercising its discretion to cancel the visa, the Tribunal considered the applicant's stated purpose of study but noted that he had not studied at the level for which the visa was approved for a substantial period.

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