Syed (Migration)

This matter concerned the review of a decision to cancel the applicant's Student (Temporary) (Class TU) visa. The applicant, Mr. Syed, had been granted the visa to undertake a Masters of Professional Accounting at the University of New South Wales, an Australian Qualifications Framework (AQF) Level 9 course. The dispute arose when the applicant's enrolment in this course was cancelled by the education provider, and he subsequently enrolled in a Diploma of Leadership and Management (AQF Level 5) and later a Certificate IV in Commercial Cookery (AQF Level 4). The Tribunal was required to determine whether the applicant had breached a condition of his visa and, if so, whether the discretion to cancel the visa should be exercised.

The primary legal issue before the Tribunal was whether the applicant had complied with condition 8202(2)(b) of the Migration Regulations 1994. This condition requires a student visa holder, not covered by specific subclauses relating to Defence, Foreign Affairs, or secondary exchange students, to maintain enrolment in a registered course that, upon completion, will provide a qualification at the same or a higher AQF level than the course for which the visa was originally granted. The Tribunal also considered the exercise of discretion under section 116(1) of the Migration Act 1958, which permits visa cancellation if a condition has been contravened.

The Tribunal reasoned that the applicant had breached condition 8202(2)(b) because his enrolment in a Diploma (AQF Level 5) and Certificate IV (AQF Level 4) was at a lower AQF level than his original Masters course (AQF Level 9). The applicant's submissions that he relied on advice from an education agent who failed to inform him of the visa condition requirements, and that he experienced homesickness and racial discrimination, were considered. However, the Tribunal found that the responsibility for complying with visa conditions rested with the visa holder. Despite acknowledging the applicant's claims of unintentional breach and personal hardship, the Tribunal concluded that the circumstances did not warrant the exercise of discretion to set aside the cancellation.

Consequently, the Tribunal affirmed the decision to cancel the applicant's Student (Temporary) (Class TU) visa.