SOHI (Migration)

The Administrative Appeals Tribunal considered the cancellation of the applicant's Subclass 573 (Higher Education Sector) student visa. The dispute arose because the applicant was no longer enrolled in a registered higher education course, having failed to meet English language requirements for a Master of Business Administration (MBA) degree and subsequently undertaking multiple vocational courses.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was made out, specifically whether the applicant had failed to comply with a condition of their visa, namely condition 8516, which requires a visa holder to continue to satisfy the criteria for the grant of their visa. 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 the applicant had failed to satisfy the criteria for the grant of his visa, as he was no longer enrolled in a registered higher education course after his MBA enrolment was cancelled. This failure to maintain enrolment in a qualifying course constituted a breach of condition 8516. In considering the exercise of discretion, the Tribunal found that the applicant lacked the will or ability to successfully study a higher education course in Australia, evidenced by his inability to pass the required English language course for the MBA and his subsequent enrolment in vocational diplomas despite holding a business bachelor's degree. The Tribunal also noted a decline in his English language test scores.

Consequently, the Tribunal affirmed the decision to cancel the applicant's Subclass 573 visa.