Ratsaeng (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Student (Temporary) (Class TU) visa, Subclass 573 (Higher Education Sector), was cancelled. The dispute centred on whether the grounds for cancellation were established and, if so, whether the discretion to cancel the visa should be exercised.

The Tribunal was required to determine if the applicant had failed to comply with a condition of their visa, specifically condition 8516, which mandates that a visa holder must continue to satisfy the primary or secondary criteria for the grant of their visa. This condition, in the context of the applicant's visa, required them to maintain enrolment in a principal course of study within the higher education sector. The Tribunal also had to consider whether, having found a ground for cancellation, it was appropriate to exercise the discretion to cancel the visa, taking into account all relevant circumstances.

The Tribunal reasoned that the applicant had not complied with condition 8516 because records indicated they were no longer enrolled in a bachelor's or master's degree course, nor were they enrolled in a principal course of study as specified for Subclass 573 visas. This non-compliance constituted a ground for cancellation under section 116(1)(b) of the Migration Act 1958. In considering the exercise of discretion, the Tribunal found no compelling need for the applicant to remain in Australia. Despite the applicant's long period of residence and investment in education, they had a significant period of breach of their visa conditions and offered no compelling reasons to justify retaining the visa.

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