Thomas (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Subclass 573 Higher Education Sector visa was subject to cancellation. The dispute arose because the applicant withdrew from a Master of Public Health course and subsequently enrolled in Diploma courses, which the Department of Immigration and Border Protection considered a breach of his visa condition 8516. This condition required the applicant to continue to satisfy the criteria for the grant of his visa, which included being enrolled in a principal course of a kind specified for that subclass.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 existed, specifically whether the applicant had failed to comply with condition 8516. If the ground for cancellation was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, taking into account all relevant circumstances. The legal issue also involved interpreting the temporal requirement of condition 8516, namely the phrase "continue to be."

The Tribunal reasoned that condition 8516 must be met at all times while the visa is held. The applicant’s enrolment in a Master of Public Health course was cancelled on 24 October 2016. He was not enrolled in a higher education sector course for a period of six months and 17 days until he enrolled in a Bachelor of Business course on 10 April 2017. This period of non-enrolment in a higher education sector course constituted a failure to comply with condition 8516. In exercising its discretion, the Tribunal noted the applicant’s stated reasons for withdrawing from the Master’s course and enrolling in Diploma and Bachelor courses, his lack of awareness regarding the implications of his enrolments, and his subsequent enrolment in a Bachelor of Business course shortly after receiving the Notice of Intention to Consider Cancellation.

The Tribunal concluded that the ground for cancellation existed and, after considering all relevant circumstances, affirmed the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.