Singh (Migration)

This matter concerned an appeal by an applicant against the cancellation of their Student (Temporary) (Class TU) visa. The applicant had been granted the visa to undertake a Bachelor of Business (Management) course, which would result in an Australian Qualifications Framework (AQF) Level 7 qualification. The core of the dispute was whether the applicant had breached condition 8202 of the Migration Regulations 1994, which requires a student visa holder to maintain enrolment in a registered course at the same or a higher AQF level than the course for which the visa was granted.

The Tribunal was required to determine if the applicant had complied with condition 8202(2)(b) of the Migration Regulations 1994. Specifically, the Tribunal had to ascertain whether the applicant maintained enrolment in a registered course that, upon completion, would provide a qualification at AQF Level 7 or higher, from the date their initial course enrolment was cancelled until they re-enrolled in a suitable course. The Tribunal also had to consider whether, having found a breach, it should exercise its discretion to cancel the visa.

The Tribunal found that the applicant had not complied with condition 8202(2)(b). The applicant's initial Bachelor of Business (Management) enrolment was cancelled on 10 September 2018. While the applicant subsequently enrolled in vocational courses (Certificate III in Carpentry and Diploma of Building and Construction), the highest AQF level of these was Level 5. The applicant did not obtain enrolment in another AQF Level 7 course until 23 October 2019, creating a significant gap in compliance. Although the applicant argued they were unaware of the breach, the Tribunal noted that the enrolment in the new Bachelor of Business (Leadership and Management) course was not due to commence until March 2023. In considering the discretion to cancel, the Tribunal acknowledged potential financial and emotional hardship but gave this factor little weight, ultimately affirming the decision to cancel the visa.