Thirumuralyraj (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Student (Temporary) (Class TU) visa, Subclass 573 (Higher Education Sector). The applicant, who had been granted a visa to undertake a Bachelor of Business course (AQF Level 7), had her visa cancelled by the delegate on the basis that she had breached condition 8202 of the Migration Regulations 1994. Specifically, the delegate found that the applicant had failed to maintain enrolment in a registered course at the same or higher level than that for which her visa was granted, having enrolled in a Certificate III in Early Childhood Education and Care and a Diploma of Early Childhood Education and Care (both AQF Level 5).

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202(2)(b) of the Migration Regulations 1994, which requires a student visa holder to maintain enrolment in a registered course that, once completed, will provide a qualification at the same or a higher level than the course for which the visa was granted. If a breach was found, the Tribunal also had to consider whether to exercise its discretion to affirm the cancellation of the visa, having regard to the circumstances presented.

The Tribunal found that the applicant had indeed breached condition 8202(2)(b) as she had not maintained enrolment at the required AQF level. While the applicant raised various personal circumstances, including family illnesses and her own injury, as reasons for changing her course of study and failing to complete or commence new courses, the Tribunal was not satisfied that these circumstances were beyond her control. Crucially, the applicant’s primary explanation for the breach was her alleged lack of awareness of the visa condition, which the Tribunal considered to be a matter within her control as a visa holder. The Tribunal also noted the applicant's inconsistent evidence regarding her previous course completions and the lack of evidence demonstrating a compelling need to remain in Australia or any significant hardship that would be caused by cancellation.

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