Udas (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of Udas, an applicant whose Subclass 573 Higher Education Sector visa was cancelled. The dispute arose because the applicant ceased to be enrolled in a higher education course, a condition of their visa, and instead enrolled in vocational courses. The AAT was tasked with reviewing the delegate's decision to cancel the visa.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8516 of their visa, which requires the holder to continue to satisfy the criteria for the grant of the visa. This condition, in the context of a Subclass 573 visa, necessitated ongoing enrolment in a principal course of a specified higher education type. The Tribunal also had to consider whether, having found a breach, the discretion to cancel the visa should be exercised.

The Tribunal found that the applicant had breached condition 8516 because they were no longer enrolled in a higher education course as required by subclauses 573.231 or 573.223(1A) of the Migration Regulations 1994. The evidence indicated that the applicant had been enrolled in vocational courses for a considerable period, failing to meet the primary criteria for their visa. While the applicant claimed to have received incorrect advice from a migration agent, the Tribunal noted a lack of evidence that the applicant had attempted to verify their compliance with visa conditions. The Tribunal concluded that the applicant's non-engagement in the study for which the visa was granted, and the absence of compelling reasons to remain in Australia, weighed in favour of cancellation.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's Subclass 573 visa, finding that on balance, and considering all the circumstances, cancellation was the appropriate outcome.