Wong (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Student (Temporary) (Class TU) visa was subject to cancellation. The dispute arose because the applicant had ceased enrolment in a registered higher-level course and subsequently enrolled in a lower-level course, potentially breaching a condition of their visa. The Tribunal was tasked with determining whether the applicant had complied with the relevant visa conditions and, if not, whether the decision to cancel the visa should be affirmed.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202(2)(b) of Schedule 8 to the Migration Regulations 1994. This condition requires a student visa holder to maintain enrolment in a registered course that, upon completion, will provide a qualification at the same or a higher Australian Qualifications Framework (AQF) level than the course for which the visa was originally granted. The applicant's visa was granted for AQF Level 7 courses, but their enrolment in these courses was cancelled, and they subsequently enrolled in an AQF Level 6 course.

The Tribunal reasoned that the applicant had indeed breached condition 8202(2)(b) as they had not maintained enrolment in a course at the same or a higher AQF level. The Tribunal noted that the exceptions provided in subclause 8202(3) did not apply to the applicant's circumstances. Despite the applicant's explanations, including family persuasion to study Information Technology, academic struggles, mental health concerns, and an admission of an "honest mistake" regarding the enrolment level requirement, the Tribunal found that the breach had occurred. After considering the applicant's circumstances and the relevant departmental guidelines, the Tribunal exercised its discretion and concluded that the visa cancellation should be affirmed.