Sohail (Migration)

This matter concerned an appeal by the applicant, Sohail, against the decision of the Minister to cancel his Student (Temporary) (Class TU) visa, Subclass 573 Higher Education Sector. The dispute arose because the applicant ceased enrolment in a registered Higher Education course and subsequently enrolled in diploma courses in the vocational education sector, failing to maintain academic progress. The decision was reviewed by the Tribunal.

The primary legal issue before the Tribunal was whether the ground for cancellation under s 116(1)(b) of the Migration Act 1958 (Cth) was made out. This required the Tribunal to determine if the applicant had failed to comply with a condition of his visa, specifically condition 8516, which mandates that a visa holder must continue to satisfy the criteria for the grant of their visa. The Tribunal also had to consider whether, in the exercise of its discretion, the visa should be cancelled, having regard to all relevant circumstances.

The Tribunal reasoned that condition 8516 required the applicant to maintain enrolment in a higher education course, as was the basis for his Subclass 573 visa. The applicant had enrolled in an Intensive Foundation Program and a Bachelor of Arts – Psychology at Macquarie University but did not complete the foundation course successfully. He subsequently enrolled in a General English course and then a Diploma of Information Technology, which is in the vocational education sector, not higher education. The Tribunal found that the applicant had not complied with the requirement to study higher education, thus satisfying the ground for cancellation under s 116(1)(b). In exercising its discretion, the Tribunal considered the applicant's original intention to study in Australia, his submissions regarding a compelling need to remain, the extent of his compliance with other visa conditions, and the hardship that cancellation might cause. Despite acknowledging the potential hardship and the applicant's initial intention to study, the Tribunal was not satisfied that he had demonstrated a compelling need to remain in Australia and found that the fundamental breach of his student visa conditions weighed against him.

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