Sheng (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 573 Higher Education Sector visa held by the applicant, Sheng. The dispute arose because the applicant was no longer enrolled in a principal course of study as required by condition 8516 of his visa. The Tribunal was tasked with determining whether the ground for cancellation existed and, if so, whether the discretion to cancel the visa should be exercised.

The primary legal issue was whether the applicant had breached condition 8516, which mandates that a visa holder must continue to satisfy the criteria for the grant of their visa. This condition was interpreted to require continuous enrolment in a specified course of study throughout the visa's validity. The Tribunal also considered the applicant's submissions regarding mental health issues and family circumstances in deciding whether to exercise the discretion to cancel the visa.

The Tribunal found that the applicant had indeed breached condition 8516 by ceasing enrolment in his Bachelor's degree course without maintaining enrolment in a specified principal course. The applicant's claims of mental health issues, while noted, were not supported by contemporaneous evidence of an ongoing treatment plan, and the Tribunal found that the applicant had not proactively communicated his difficulties to his education provider or the Department. While acknowledging the applicant's subsequent enrolment in vocational education and training courses, the Tribunal concluded that the significant breach of the visa condition, coupled with the lack of a clear plan to fulfil the original purpose of the visa, weighed against exercising discretion to set aside the cancellation.

Consequently, the Tribunal affirmed the decision to cancel the applicant's visa.