Sharma (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Subclass 573 Higher Education Sector visa. The applicant, Mr. Sharma, had been granted the visa with condition 8516, which required him to continue to satisfy the criteria for the grant of the visa. The dispute arose because the applicant ceased to be enrolled in a higher education course, thereby allegedly breaching condition 8516. The decision was made by the Migration Review Tribunal.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8516 of his visa. This required the Tribunal to determine if the applicant continued to meet the criteria for the grant of a Subclass 573 visa, specifically whether he was enrolled in a principal course of a kind specified for that subclass. If a breach was found, the Tribunal also had to consider whether to exercise its discretion to cancel the visa, having regard to all relevant circumstances.

The Tribunal reasoned that condition 8516 required the applicant to remain enrolled in a higher education course as defined by the Migration Regulations 1994. Evidence, including the applicant's own oral evidence, indicated that he had not been enrolled in a higher education course since June 2016. While the applicant claimed he was misled by his education agent and subsequently enrolled in a Bachelor of Business course after receiving a Notice of Intention to Consider Cancellation, the Tribunal found his breach of condition 8516 to be significant. The Tribunal noted that the applicant was not fulfilling the purpose of his travel to Australia and that there were no compelling reasons for him to remain in the country other than to complete his education. Despite acknowledging the applicant's situation, the Tribunal concluded that the applicant had failed to verify his compliance with visa conditions and that the non-engagement in the required study weighed in favour of cancellation.

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