Qi (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Subclass 573 Higher Education Sector visa was cancelled. The applicant, who arrived in Australia in February 2015, initially enrolled in English language courses and a Bachelor of Business. After completing the English courses, her enrolment in the Bachelor of Business was cancelled in July 2016 when she transferred to a Diploma of Remedial Massage, a vocational course. In August 2017, the Department of Immigration and Border Protection issued a notice of intention to cancel her visa on the grounds that she was not, or was unlikely to be, a genuine student.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(fa)(i) of the Migration Act 1958 (Cth) existed, specifically whether the applicant was a genuine student. The Tribunal also had to consider whether to exercise its discretion to cancel the visa, having regard to all relevant circumstances. The relevant law permitted cancellation if the visa holder was not a genuine student or engaged in conduct not contemplated by the visa. The Tribunal noted that for notices of intention to cancel sent after March 2010, specific prescribed matters under regulation 2.43 of the Migration Regulations 1994 could be considered.

The Tribunal found that the ground for cancellation existed. It noted that the applicant had transferred to a vocational course after cancelling her higher education enrolment and that her education provider had advised of non-attendance and lack of course progression, leading to the cancellation of her enrolment. The applicant's explanation that her agent advised her she did not need to attend classes was given no weight, as the responsibility for complying with visa conditions rests with the visa holder. The Tribunal also found inconsistencies between the applicant's reported working hours and those provided by her employer, and between her study claims and her provider's records. While acknowledging the applicant's initial intention to study a Bachelor of Business and her compliance with other visa conditions, the Tribunal concluded that the non-compliance with enrolment in a registered course at the appropriate level had occurred over a substantial period.

On balance, the Tribunal affirmed the decision to cancel the applicant's visa, concluding that the cancellation was warranted given the circumstances.