Kyaw (Migration)

The Administrative Appeals Tribunal considered a decision to cancel the Subclass 573 Higher Education Sector visa of the applicant, Ms. Kyaw. The dispute arose from the delegate's satisfaction that Ms. Kyaw had failed to comply with a condition of her visa, specifically condition 8516, which requires the holder to continue to satisfy the criteria for the grant of the visa.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was made out. This involved assessing whether Ms. Kyaw had complied with condition 8516, which, in turn, required an examination of whether she was enrolled in a principal course of study that met the requirements for a Subclass 573 visa, as defined by subclauses 573.231 and 573.223(1A) of the Migration Regulations 1994 (Cth) and the relevant instrument made under regulation 1.04A.

The Tribunal reasoned that the delegate erred in considering Ms. Kyaw's delayed completion of a Diploma of Engineering as a failure to meet the visa conditions. The delegate had incorrectly classified the Diploma as not being a Higher Education course. However, the relevant instrument specified "Diploma (Higher Education)" as a qualifying course type for Subclass 573 visas. Crucially, Ms. Kyaw was enrolled in a Bachelor of Engineering course at the time of the cancellation decision, and while her enrolment in that course was delayed, it had not been cancelled. The Tribunal concluded that Ms. Kyaw remained enrolled in a qualifying course of study, and therefore, the ground for cancellation under section 116(1)(b) was not established.

Consequently, the Tribunal set aside the decision to cancel Ms. Kyaw's visa and substituted a decision not to cancel her Subclass 573 Higher Education Sector visa.