Sran (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Student (Temporary) (Class TU) visa, Subclass 573 Higher Education Sector, held by the applicant. The dispute arose because the applicant ceased enrolment in a registered Higher Education course and subsequently changed to vocational courses, which the delegate determined breached a condition of their visa.

The Tribunal was required to determine whether the ground for cancellation under s 116(1)(b) of the Migration Act 1958 (Cth) existed, specifically whether the applicant had complied with condition 8516 of their visa. This condition mandates that a visa holder must continue to satisfy the primary 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 course that met the criteria for their Subclass 573 visa. The applicant’s visa required enrolment in a principal course within the higher education sector, which could include a Higher Education Diploma. However, the applicant enrolled in a Diploma of Hospitality with a provider not listed as an eligible education provider under the relevant instrument. Therefore, the Tribunal found that the ground for cancellation under s 116(1)(b) was established. In considering the exercise of discretion, the Tribunal noted the applicant's original purpose of study, the fundamental breach of visa conditions, and the limited hardship claims made by the applicant. While acknowledging the potential hardship, the Tribunal found no compelling reason to retain the visa, particularly given the applicant's failure to provide satisfactory reasons for the change in study and the fact that the vocational qualifications obtained could be pursued further.

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