Randev (Migration)

This matter concerned a review by the Administrative Appeals Tribunal of a decision to cancel the applicant's Student (Temporary) (Class TU) visa, subclass 573. The cancellation was based on the ground that the applicant had failed to continue to satisfy the primary and secondary criteria for the grant of his visa, as required by condition 8516 of his visa. The applicant's enrolment in a Bachelor of Business course was cancelled on 22 August 2016, and he was not enrolled in any course between that date and 3 April 2017.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was made out, and if so, whether the discretion to cancel the visa should be exercised. The primary legal issue was whether the applicant had ceased to meet the criteria for his visa, specifically paragraphs 573.223(1A) or 573.231 of Schedule 2 to the Migration Regulations. These criteria require a holder to maintain enrolment in a course of study for a Bachelor's degree or be enrolled in a course specified by the Minister.

The Tribunal found that the applicant had indeed ceased to meet the criteria for his visa when his enrolment was cancelled on 22 August 2016, and he did not meet the alternative criteria as he was not enrolled in any course specified by the Minister. The Tribunal considered the applicant's academic performance, attendance record, and ability and motivation to undertake an education course in Australia. Despite the applicant's submissions regarding his intentions and attempts to re-enrol, the Tribunal found that his past academic performance, including unsatisfactory progress and poor attendance in previous courses, demonstrated a lack of ability and motivation to successfully undertake an education course in Australia. Consequently, the Tribunal affirmed the decision to cancel the applicant's visa.