Purba (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 573 Higher Education Sector visa of the applicant, Mr. Purba. The dispute arose from the applicant's enrolment in vocational courses after his higher education course progress was deemed unsatisfactory, leading to the cancellation of his enrolment in the Bachelor of Business program. The Tribunal was tasked with determining whether the ground for cancellation existed and, if so, whether the discretion to cancel the visa should be exercised.

The primary legal issue was whether the applicant had breached condition 8516 of his visa, which requires the holder to continue to satisfy the criteria for the grant of the visa. This condition, in the context of a Subclass 573 visa, necessitates maintaining enrolment in a principal course of a kind specified for that subclass. The Tribunal also had to consider whether, even if a breach occurred, the circumstances warranted the exercise of the Minister's discretion to cancel the visa.

The Tribunal found that the applicant's enrolment in a Bachelor of Business was cancelled due to unsatisfactory course progress, and he subsequently enrolled in an Advanced Diploma of Business, which is a vocational course. This change meant he no longer met the criteria for a Subclass 573 visa. However, the Tribunal considered the applicant's evidence that he was advised by a Student Support Officer at his institution and subsequently by the Department that he could undertake the Advanced Diploma while maintaining his enrolment in the Bachelor of Business. The Tribunal also noted the applicant's financial support from family and friends, his intention to return to India to expand his father's business, and the potential loss of his "dream" if he had to depart Australia without completing his studies.

Given these circumstances, particularly the advice received by the applicant regarding his enrolment status and the potential hardship he would face, the Tribunal concluded that the discretion to cancel the visa should not be exercised. Accordingly, the Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel it.