Liang (Migration)

The matter before the Tribunal concerned the cancellation of the applicant's Student (Temporary) (Class TU) visa, Subclass 573 Higher Education. The applicant had been granted the visa to undertake a Bachelor of Design course. The cancellation was based on the assertion that the applicant had breached condition 8202 of the Migration Regulations 1994 by not completing the course for which the visa was granted.

The primary legal issue for determination was whether the applicant had complied with condition 8202 of the Migration Regulations 1994. This condition requires a student visa holder to be enrolled in a registered course and to maintain enrolment in a course that, upon completion, will provide a qualification at the same or a higher Australian Qualifications Framework (AQF) level as the course for which the visa was granted. The applicant's visa was cancelled on the basis that he was not enrolled in the registered course for which the visa was granted.

The Tribunal reasoned that while the applicant had not completed the exact Bachelor of Design course initially intended, he had completed a different Bachelor of Design course at the same AQF level earlier than originally planned. The evidence indicated that the applicant had enrolled in a Bachelor of Design in Interior and Spatial Design, which commenced and concluded at the same time as the originally planned Bachelor of Design in Fashion and Textiles course would have. The Tribunal also referred to policy guidelines which suggest that students who complete their principal course of study earlier than planned and apply for a permanent visa should generally be allowed to remain on their student visa, and that such visas should not be cancelled in cases of early completion.

Consequently, the Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel the visa.