Sharma (Migration)

The Administrative Appeals Tribunal considered the case of Sharma, an applicant for a Subclass 500 (Student) visa. The dispute arose when the Department of Home Affairs decided to cancel the applicant's visa on the grounds that he had breached condition 8202 of the Migration Regulations 1994 by failing to maintain enrolment in a registered course at the same or a higher Australian Qualifications Framework (AQF) level as that for which his visa was granted.

The Tribunal was required to determine whether the applicant had indeed breached condition 8202(2)(b) of the Migration Regulations 1994, and if so, whether to exercise its discretion to cancel the visa. Condition 8202(2)(b) mandates that a student visa holder must maintain enrolment in a registered course that, upon completion, will provide a qualification at the same or a higher AQF level than the course for which the visa was originally granted.

The Tribunal found that the applicant had technically breached condition 8202(2)(b) as his enrolment in a Bachelor of Business (Management) (AQF Level 7) was cancelled, and he was not enrolled in a course at AQF Level 9 or 10. However, the Tribunal noted that the applicant had enrolled in a Diploma of Nursing (AQF Level 5) shortly after his previous enrolment was cancelled, indicating an immediate attempt to continue his studies. The Tribunal also considered that the applicant had acted on misleading advice from a migration agent and had made substantive efforts to secure study rights while on a Bridging visa E. Furthermore, the Tribunal took into account the potential emotional and financial hardship the applicant would face if his visa were cancelled.

Ultimately, the Tribunal decided to set aside the Department's decision to cancel the applicant's Subclass 500 (Student) visa and substituted a decision not to cancel the visa. The Tribunal noted that this decision was reached marginally in the applicant's favour, highlighting the careful balancing of the breach against the mitigating circumstances.