Sharma (Migration)

This matter concerned the affirmation of a decision to cancel the applicant's Subclass 573 Higher Education Sector visa. The applicant had been granted the visa on 18 June 2013. The dispute arose when the Minister, through a delegate, decided to cancel the visa under section 116(1)(b) of the Migration Act 1958 (Cth), which permits cancellation if the visa holder does not comply with a condition of their visa. The Tribunal, presided over by Tigiilagi Eteuati, was tasked with determining whether the grounds for cancellation existed and, if so, whether the discretion to cancel the visa should be exercised.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8516 of his visa. This condition mandates that a visa holder must continue to satisfy the criteria for the grant of their visa. Specifically, for a Subclass 573 visa, this required the applicant to be enrolled in a course of study specified by the Minister, such as a Bachelor degree or a Higher Education Diploma. The Tribunal had to assess whether the applicant's enrolment history and completed courses met these requirements at the relevant times. A secondary issue was whether, if the ground for cancellation was established, the Tribunal should exercise its discretion to cancel the visa, considering all relevant circumstances.

The Tribunal reasoned that the applicant had failed to satisfy the criteria for the grant of his visa as required by condition 8516. While initially enrolled in a Bachelor of Information Technology and related courses, he completed only vocational education and training (VET) courses, such as a Certificate IV in Small Business Management and diplomas, which did not meet the Higher Education Sector requirements for a Subclass 573 visa. The Tribunal found that the applicant's assertion that he was not adequately informed by his education provider about his visa obligations was not a sufficient reason to excuse his non-compliance. Furthermore, the Tribunal considered the applicant's subsequent enrolments and his claims of financial hardship if the visa remained cancelled, but concluded that these did not outweigh the breach of his visa conditions.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's Subclass 573 visa. The Tribunal was satisfied that the ground for cancellation under section 116(1)(b) was made out and that the exercise of discretion to cancel the visa was warranted in the circumstances.