SANDEEP (Migration)

The Administrative Appeals Tribunal considered the case of Sandeep, an applicant for a Student (Temporary) (Class TU) visa, subclass 500. The dispute arose from the Department of Home Affairs' decision to cancel Sandeep's visa. The applicant contended that the cancellation decision should be set aside.

The primary legal issue before the Tribunal was whether Sandeep had breached condition 8202(2)(b) of the Migration Regulations 1994, which requires a student visa holder to maintain enrolment in a registered course leading to a qualification at the same or a higher Australian Qualifications Framework (AQF) level than the course for which the visa was granted. If a breach was found, the Tribunal also had to consider whether to exercise its discretion to cancel the visa.

The Tribunal found that Sandeep had indeed breached condition 8202(2)(b) by enrolling in courses at AQF levels 3, 4, and 5, which were lower than the AQF level 7 Bachelor's degree for which the visa was initially granted. However, in exercising its discretion regarding cancellation, the Tribunal gave significant weight to Sandeep's compelling need to remain in Australia to complete her studies, her intention to gain internationally recognised qualifications, and the support of her parents. The Tribunal also noted factors such as Sandeep's young age, reliance on advice from an education agent, and steps taken to rectify the situation, concluding that these mitigating circumstances outweighed the grounds for cancellation.

Consequently, the Tribunal set aside the decision to cancel Sandeep's Subclass 500 (Student) visa and substituted a decision not to cancel it.