Wirawan (Migration)

The Administrative Appeals Tribunal affirmed the decision to cancel Mr Wirawan's Subclass 573 Higher Education Sector visa. The dispute concerned whether the grounds for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) were made out, and if so, whether the discretion to cancel the visa should be exercised.

The Tribunal was required to determine if Mr Wirawan had complied with condition 8516 of his visa, which mandates that a visa holder must continue to satisfy the primary or secondary criteria for the grant of their visa. Specifically, this involved assessing whether Mr Wirawan maintained enrolment in a course of study at the higher education sector, as required by the criteria for his Subclass 573 visa. The Tribunal also had to consider whether, having found a ground for cancellation, it was appropriate to exercise the discretion to cancel the visa, taking into account all relevant circumstances.

The Tribunal reasoned that Mr Wirawan had breached condition 8516 because his enrolment was no longer in a course prescribed for the Subclass 573 visa, and his future enrolments were in the VET sector, not the higher education sector. The Tribunal found that the applicant did not provide sufficient information to warrant exercising discretion against cancellation, noting the lack of response to the Notice of Intention to Consider Cancellation and the absence of written submissions. The Tribunal concluded that the applicant's stated intention at the time of application did not outweigh the breach, and while there were no other breaches, the length of the breach was significant. The Tribunal also found that the applicant had not demonstrated any significant hardship that would result from cancellation.

Consequently, the Tribunal affirmed the decision to cancel Mr Wirawan's Subclass 573 visa.