Promwongsa (Migration)

This matter concerned an appeal by the applicant, Promwongsa, against the decision to cancel her Subclass 573 Higher Education Sector visa. The applicant had been granted the visa to undertake a Bachelor of Business course. The cancellation was based on the applicant's failure to maintain enrolment in a registered course for approximately two years, from December 2015 until the cancellation date in November 2017. The applicant had cited English language difficulties and reliance on an education agent as reasons for her lack of progress and sought to continue studying English and potentially a Certificate in Business before departing Australia.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was established, and if so, whether the discretion to cancel the visa should be exercised. Section 116(1)(b) permits cancellation if the Minister or Tribunal is satisfied that the visa holder has not complied with a condition of their visa. In this case, the relevant condition was 8516, which requires the visa holder to continue to satisfy the criteria for the grant of the visa.

The Tribunal reasoned that the applicant had failed to comply with condition 8516, as her enrolment in the Bachelor of Business course had been cancelled and she was no longer enrolled in a qualifying course. This failure to comply with a visa condition for an extended period was considered a significant factor weighing in favour of cancellation. While acknowledging the applicant's stated reasons, including English language difficulties and reliance on an education agent, the Tribunal found that these did not negate the non-compliance. The Tribunal also considered the purpose of the visa, the extent of non-compliance, and the potential hardship, ultimately concluding that the applicant did not have a compelling need to remain in Australia and that the visa should be cancelled.

The Tribunal affirmed the decision to cancel the applicant's Subclass 573 visa. The Tribunal noted it had no jurisdiction with respect to a second applicant.