Law (Migration)

This matter concerned an appeal by a visa holder against the cancellation of their Higher Education Sector (subclass 573) visa. The applicant had initially been granted the visa to undertake a Bachelor of Interior Design, which is at Australian Qualifications Framework (AQF) Level 7. However, the applicant subsequently ceased enrolment in this course and enrolled in a Certificate III in Carpentry, an AQF Level 3 course. The delegate concluded this change constituted a failure to comply with a visa condition, leading to the cancellation of the visa. The Administrative Appeals Tribunal was required to determine whether the applicant had failed to comply with Condition 8202(2)(b) of their visa, which mandates maintaining enrolment in a course leading to a qualification at the same or a higher AQF level than the original course.

The Tribunal considered the applicant's personal circumstances, including a car accident and the ill health of their grandfather, but found these did not constitute compelling reasons to permit a "downgrade" in their course of study. The Tribunal applied the principles established in *Zhao v Minister for Immigration & Multicultural Affairs* [2000] FCA 1235, which state that a decision-maker must be satisfied that a ground for cancellation exists based on the available material, rather than relying on the visa holder's failure to rebut a potential ground. The Tribunal noted that Condition 8202(2)(b) is designed to ensure the robustness of Australia's student visa program by requiring visa holders to adhere to their stated study purpose and prohibiting enrolment in simpler courses.

Ultimately, the Tribunal concluded that the factors favouring cancellation outweighed those against it. The Tribunal affirmed the delegate's decision to cancel the applicant's visa, finding that the applicant had not complied with Condition 8202(2)(b) by enrolling in a course at a lower AQF level than that for which the visa was granted.