SHUJAT (Migration)

This matter concerned an appeal by the applicant against the Minister's decision to cancel their Student (Temporary) (Class TU) visa, subclass 573 (Higher Education Sector). The applicant had been granted the visa for the purpose of study in Australia.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was established. This ground relates to the visa holder failing to comply with a condition of their visa, specifically condition 8516, which requires the holder to continue to satisfy the primary or secondary criteria for the grant of the visa. The Tribunal was also required to consider whether, having found a ground for cancellation, the discretion to cancel the visa should be exercised.

The Tribunal reasoned that condition 8516 necessitated the applicant maintaining enrolment in a course of study specified for their visa subclass. Evidence indicated that the applicant had not been enrolled in a course of study at the Higher Education Sector level since 30 November 2015, and had not obtained a new confirmation of enrolment or offer of study within the validity period of their visa. The applicant admitted to not commencing courses in General English and a Master of Business Administration, and had only completed a Diploma in Business in March 2017, with no further study undertaken since 2015. Despite the applicant's stated intention to study, the Tribunal found this admission and lack of subsequent enrolment weighed little in their favour, as it suggested their purpose of stay was not for study. Consequently, the Tribunal was satisfied that the applicant had breached condition 8516.

Having affirmed the ground for cancellation, the Tribunal considered its discretion. While acknowledging the applicant's original intention to study, the Tribunal found that the prolonged period of non-enrolment and lack of engagement in the specified course of study demonstrated a significant breach of visa conditions. Therefore, the Tribunal affirmed the decision to cancel the applicant’s visa.