Pham (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Subclass 573 Higher Education Sector visa was cancelled. The dispute centred on whether the applicant had breached a condition of their visa, leading to the cancellation decision by the delegate. The Tribunal was tasked with reviewing this cancellation decision.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8516 of Schedule 8 to the Migration Regulations 1994. This condition requires a visa holder to continue to satisfy the criteria for the grant of their visa, which in the context of a student visa, includes maintaining enrolment in a course. The Tribunal also had to determine if the grounds for cancellation under section 116(1) of the Migration Act 1958 were made out and, if so, whether the visa should be cancelled.

The Tribunal reasoned that the applicant had breached condition 8516 by failing to maintain enrolment in a Higher Education Sector level course for a significant period, from September 2015 until the delegate's decision in November 2016. This failure meant the applicant was not fulfilling the purpose for which the student visa was granted. The Tribunal noted that the applicant had been invited to a hearing but failed to attend without providing a reason, and had not provided further submissions. Applying section 116(1)(b) of the Act, the Tribunal was satisfied that the ground for cancellation existed. The Tribunal then exercised its discretion, considering the applicant's prolonged failure to fulfil the visa's purpose, and concluded that the visa should be cancelled.

The Tribunal affirmed the delegate's decision to cancel the applicant's Subclass 573 Higher Education Sector visa.