Ng (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Student (Temporary) (Class TU) visa held by the applicant, a Malaysian national. The dispute arose because the applicant's visa was cancelled on the grounds that he had breached condition 8202 of the Migration Regulations 1994 by enrolling in a course at a lower AQF level than that for which his visa was granted.

The Tribunal was required to determine whether the applicant had breached condition 8202(2) of the Migration Regulations 1994, which mandates that a student visa holder must maintain enrolment in a registered course that, upon completion, will provide a qualification at the same or a higher level than the course for which the visa was granted. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa.

The Tribunal found that the applicant had breached condition 8202(2) because he admitted to his enrolment in a Bachelor of Business course being cancelled and subsequently enrolling in a Diploma and Advanced Diploma of Leadership and Management. These courses were at a lower AQF level than the Bachelor degree for which his visa was granted, and this non-compliance had persisted for nearly 12 months. While the Tribunal acknowledged the applicant's stated intention to study and his successful completion of English language courses, it found that the factors weighing in favour of cancellation, particularly the failure to maintain enrolment at the required level and the lack of evidence of an intention to return to Bachelor-level study, outweighed any mitigating factors.

Consequently, the Tribunal affirmed the decision to cancel the applicant's student visa.