Mohammed (Migration)

This matter concerned an appeal to the Tribunal regarding the cancellation of the applicant's Student (Temporary) (Class TU) visa, subclass 500. The applicant's visa was cancelled by the delegate on the basis that the applicant had failed to comply with a condition of their visa. The applicant had initially been granted a visa to study a Master of Information Technology, which is at AQF Level 9. However, the applicant's enrolment in this course was cancelled due to non-commencement of studies. Subsequently, the applicant enrolled in a Diploma of Business and a Graduate Diploma of Management (Learning), which the delegate determined to be at AQF Level 8.

The primary legal issue before the Tribunal was whether the applicant had breached Condition 8202(2)(b) of the Migration Regulations 1994, which requires a student visa holder to maintain enrolment in a registered course that, upon completion, would provide a qualification at the same or a higher Australian Qualifications Framework (AQF) level than the course for which the visa was originally granted. The Tribunal was required to determine if the applicant's change of enrolment to a lower AQF level course constituted a failure to comply with this condition, thereby providing grounds for visa cancellation under section 116(1)(b) of the Migration Act 1958.

The Tribunal applied section 116(1)(b) of the Act, which permits visa cancellation if the Minister is satisfied that a visa holder has not complied with a visa condition. It noted that Condition 8202(2)(b) specifically prohibits a student visa holder from "downgrading" to a simpler course on the AQF hierarchy. The Tribunal considered the delegate's decision, the applicant's oral evidence, and all written material. While acknowledging the applicant's sincerity and carefully considering the circumstances of the breach, the Tribunal found that the factors favouring cancellation outweighed those against it. The Tribunal affirmed the delegate's decision to cancel the applicant's visa.