Ravinder (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 573 Higher Education Sector visa of the applicant, Ravinder. The dispute centred on whether the applicant had complied with condition 8516 of his visa, which required him to continue satisfying the primary criteria for the visa grant. The applicant had initially been enrolled in a Bachelor of Business (Marketing Management) at the University of Canberra, but this enrolment was cancelled. He subsequently enrolled in a Diploma and Advanced Diploma of Management at Brighton Institute of Technology, and later in a Bachelor of Business at Stott’s College.

The Tribunal was required to determine if the applicant's enrolment in the Diploma and Advanced Diploma of Management courses constituted a course of study that was a principal course of a type specified for subclass 573 visas under the relevant instrument. This involved distinguishing between higher education and vocational education and training courses within the context of the migration regulations and associated instruments. The Tribunal also had to consider whether, having found a ground for cancellation, it should exercise its discretion not to cancel the visa, taking into account various factors including the applicant's circumstances, the duration of non-compliance, and compassionate considerations.

The Tribunal reasoned that the Diploma and Advanced Diploma of Management courses undertaken at Brighton Institute of Technology were vocational education and training level courses, not Higher Education Diplomas or Advanced Diplomas as specified for subclass 573 visas. This was based on CRICOS information, the Australian Qualifications Framework, and the classification of Brighton Institute as a vocational education provider. Consequently, the Tribunal found that for the period between the cancellation of his Bachelor's enrolment and his subsequent enrolment in a Bachelor of Business, the applicant did not meet the criteria for a subclass 573 visa and therefore breached condition 8516. However, in considering the exercise of discretion, the Tribunal noted the very short period of non-compliance, the compassionate circumstances surrounding the death of the applicant's mother during this time, and the relatively short duration of his stay in Australia, which did not provide sufficient evidence to conclude he was not a genuine student.

The Tribunal concluded that, given the compassionate circumstances and the short duration of the breach, the applicant should be given a further opportunity to demonstrate his ability to study. Accordingly, the Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel it.