LE (Migration)

The Administrative Appeals Tribunal (Cth) considered an appeal by an applicant against the cancellation of his Student (Temporary) (Class TU) visa, Subclass 573 (Higher Education Sector). The dispute arose from the applicant's failure to maintain enrolment in a higher education course, which led to the cancellation of his visa by the Department.

The Tribunal was required to determine whether the ground for cancellation under s 116(1)(b) of the Migration Act 1958 (Cth) was established, specifically whether the applicant had failed to comply with a condition of his visa by not continuing to satisfy the primary criteria for its grant, which included maintaining enrolment. If the ground for cancellation was established, the Tribunal then had to consider whether to exercise its discretion to set aside the cancellation decision, taking into account all relevant circumstances.

The Tribunal found that the ground for cancellation was established because the applicant had ceased to be enrolled in a higher education course, thereby failing to meet the requirements of condition 8516 of his visa. In considering the exercise of discretion, the Tribunal had regard to the applicant's history of study in Australia, noting an unsatisfactory attendance record and a low level of engagement with his studies. Despite the applicant's stated desire to complete his studies to improve career prospects and avoid disappointing his parents, the Tribunal found that he had demonstrated limited commitment and ability to complete higher education courses in Australia. The Tribunal also noted that the applicant struggled to recall details of his courses and subjects, which did not support his claim of a compelling need to remain in Australia for study. The Tribunal concluded that these factors did not weigh against the exercise of its discretion to cancel the visa.

The Tribunal affirmed the decision to cancel the applicant's visa.