Sooch (Migration)

The Administrative Appeals Tribunal considered the case of Mr Sooch, a holder of a Student (Temporary) (Class TU) visa, subclass 500. The dispute concerned the cancellation of Mr Sooch's visa by the Department of Home Affairs on the grounds that he had breached condition 8202(2)(b) of the Migration Regulations 1994 by failing to maintain enrolment in a registered course at the same or a higher Australian Qualifications Framework (AQF) level as that for which his visa was granted.

The Tribunal was required to determine whether Mr Sooch had breached condition 8202(2)(b) and, if so, whether the discretion to cancel his visa should be exercised. Condition 8202(2)(b) mandates that a student visa holder must maintain enrolment in a course that, upon completion, will provide a qualification at the same or a higher AQF level than the course for which the visa was initially granted. Mr Sooch's visa was granted for study at AQF Level 7, but his enrolment in that course was cancelled, and he subsequently enrolled in a course at AQF Level 5.

The Tribunal found that Mr Sooch had indeed breached condition 8202(2)(b) as his enrolment in a Level 5 course was two AQF levels below the Level 7 course for which his visa was granted. While acknowledging that Mr Sooch had since obtained a new enrolment in a Bachelor of Accounting (AQF Level 7), the Tribunal was troubled by the extensive period of non-compliance and found that the new enrolment was procured predominantly to rectify the breach rather than out of a genuine desire to study accounting. Furthermore, the duration of the new enrolment extended beyond the expiry of his current visa.

Consequently, the Tribunal affirmed the decision to cancel Mr Sooch's visa, concluding that despite the rectification of the breach, the prolonged period of non-compliance and the circumstances surrounding the new enrolment weighed against exercising discretion to set aside the cancellation.