WEI (Migration)

This matter concerned an application for review of a decision to cancel the Student (Temporary) (Class TU) visa, Subclass 573 Higher Education Sector, held by the applicant. The applicant had ceased enrolment in a registered higher education course, leading to the cancellation of her visa on the grounds that she no longer satisfied the conditions of her visa. The decision under review was made by the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was made out, specifically concerning the applicant's non-compliance with visa condition 8516. This condition requires a visa holder to continue to satisfy the primary or secondary criteria for the grant of their visa. The Tribunal also had to consider whether, having found a ground for cancellation, it should exercise its discretion to cancel the visa.

The Tribunal reasoned that condition 8516 required the applicant to maintain enrolment in a course of study for which the visa was granted. Evidence indicated that the applicant had ceased enrolment in her Bachelor of Design in Architecture course on 21 September 2015 and had not held enrolment in a specified course since that date. The applicant had also failed to respond to a Notice of Intention to Consider Cancellation. The Tribunal found that this constituted a breach of condition 8516. In considering the exercise of discretion, the Tribunal gave little weight to the applicant's stated purpose of study, given her lack of enrolment and failure to respond to the NOICC. The Tribunal also noted that while there were no other breaches, the length of the non-compliance was significant.

The Tribunal concluded that the ground for cancellation was established and that, considering all the circumstances, the visa should be cancelled. Accordingly, the Tribunal affirmed the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.