Lim (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Subclass 500 (Student) visa. The applicant had been granted the visa to undertake a higher education course, specifically a Bachelor of Ministry. However, the delegate was satisfied that the applicant had breached condition 8516 of his visa, which requires the holder to continue to satisfy the criteria for the grant of the visa, by not being enrolled in a higher education course and instead undertaking an IELTS Preparation course. The Administrative Appeals Tribunal was required to determine whether the ground for cancellation existed and, if so, whether to exercise its discretion to cancel the visa.

The Tribunal was required to determine if the applicant had breached condition 8516 of his visa, which mandated that he remain enrolled in a 'full time registered course' leading to a higher education award. The Tribunal found that the applicant had indeed breached this condition, as he was enrolled in an IELTS Preparation course and not a higher education course. This meant he was not a person who would satisfy the primary criteria for the grant of the visa. The Tribunal then considered whether to exercise its discretion to cancel the visa, having regard to the circumstances of the case and relevant departmental policy.

In its reasoning, the Tribunal acknowledged that the applicant's breach of condition 8516 was significant, as he was not engaging in the study for which his visa was granted. However, the Tribunal also took into account the specific circumstances surrounding the breach. The applicant's education provider, World College, had closed down unexpectedly, preventing him from making alternative arrangements to complete his studies. While the Tribunal did not find the applicant's personal reasons for wishing to remain in Australia to be compelling, it ultimately concluded that, in considering all the circumstances, the visa should not be cancelled.

Consequently, the Tribunal set aside the decision to cancel the applicant's Subclass 500 visa and substituted a decision not to cancel it.