Nimanna Gamage (Migration)

This matter concerned an appeal by Nimanna Gamage against the decision of the delegate to cancel his Student (Temporary) (Class TU) visa, subclass 500. The applicant had been granted the visa to undertake a Bachelor of Business course, which would result in an Australian Qualifications Framework (AQF) level 7 qualification. The core of the dispute revolved around whether the applicant had complied with condition 8202 of the Migration Regulations 1994, which mandates maintaining enrolment in a registered course at the same or a higher AQF level than that for which the visa was granted.

The Tribunal was required to determine if the applicant had breached condition 8202(2)(b) of the Migration Regulations 1994. Specifically, the Tribunal had to ascertain whether the applicant had maintained enrolment in a registered course that, upon completion, would provide a qualification at AQF level 7 or higher, following his initial enrolment in a Bachelor of Business course. The Tribunal also had to consider whether, having found a breach, the discretion to cancel the visa should be exercised in the applicant's favour.

The Tribunal found that the applicant had not complied with condition 8202(2)(b) from at least 7 September 2018. This conclusion was based on evidence that the applicant's initial enrolment in a Bachelor of Business course was cancelled due to non-commencement of studies. Subsequent enrolments in a Bachelor of Tourism and Hospitality Management, a Certificate IV in Business, and a Diploma of Business all resulted in qualifications at AQF levels below 7. Furthermore, the applicant's later enrolments in automotive technology courses were also at AQF levels 5 or below. In exercising its discretion, the Tribunal noted the lack of evidence regarding any compelling need for the applicant to remain in Australia, the applicant's failure to provide evidence of hardship, and the applicant's failure to appear at the hearing or provide submissions, all of which weighed in favour of cancellation.

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