Wu (Migration)

This matter concerned the affirmation of a decision to cancel the applicant's Subclass 573 Higher Education Sector visa. The applicant had been granted the visa to undertake higher education studies in Australia but subsequently changed his enrolment to a vocational bricklaying course and departed Australia without a bridging visa. The Tribunal was required to determine whether the grounds for cancellation existed and, if so, whether the discretion to cancel the visa should be exercised.

The primary legal issue was whether the applicant had breached condition 8516 of his visa, which requires the holder to continue to satisfy the criteria for the grant of the visa. Specifically, the Tribunal considered whether the applicant's enrolment in a bricklaying course meant he no longer met the criteria for a Subclass 573 visa, which requires enrolment in a bachelor or master degree course or a specified principal course. The Tribunal also had to consider whether, having found a ground for cancellation, it should exercise its discretion to cancel the visa, taking into account relevant circumstances.

The Tribunal reasoned that by ceasing enrolment in a higher education course and enrolling in a bricklaying course, the applicant no longer satisfied the criteria for the grant of his Subclass 573 visa. This constituted a breach of condition 8516, thus establishing the ground for cancellation under s 116(1)(b) of the Migration Act 1958 (Cth). In exercising its discretion, the Tribunal considered the applicant's original purpose for entering Australia, his failure to comply with visa conditions by not undertaking the specified studies, and the lack of evidence regarding hardship. On balance, the Tribunal concluded that the circumstances warranted the cancellation of the visa.

The Tribunal affirmed the decision to cancel the applicant's visa.