Vibhor (Migration)

This matter concerned an appeal by an applicant against the cancellation of his Student (Temporary) (Class TU) Subclass 573 (Higher Education Sector) visa. The dispute arose because the applicant was found to have been enrolled in courses at a lower educational level than that required by his visa conditions for a significant period. The decision under review was made by the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the Minister's decision to cancel the applicant's visa should be affirmed. This required the Tribunal to determine if the grounds for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) were made out, specifically whether the applicant had failed to comply with a condition of his visa. 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 Tribunal found that the applicant had breached condition 8516 of his visa, which required him to maintain enrolment in a course of higher education. This breach occurred between 22 September 2016 and 22 July 2019, during which time the applicant was enrolled in vocational education and training (VET) level courses rather than a higher education course as required by his Subclass 573 visa. While the applicant attributed this to mistaken reliance on advice from his agents, the Tribunal noted the lengthy duration of the breach and the applicant's failure to make independent inquiries to ensure compliance. The Tribunal concluded that these factors, on balance, favoured the exercise of discretion to cancel the visa.

Accordingly, the Tribunal affirmed the decision to cancel the applicant's Subclass 573 Higher Education Sector visa.