Zhang (Migration)

This matter concerned an application by Ms Zhang (the applicant) to review the decision to cancel her Subclass 500 (Student) visa. The applicant's visa was granted for the purpose of studying a Master of Professional Accounting, an Australian Qualifications Framework (AQF) level 9 course. The Department of Home Affairs cancelled her visa on the grounds that she had breached conditions 8202(2)(a) and 8202(2)(b) of Schedule 8 to the Migration Regulations 1994. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether the applicant had indeed breached these conditions and, if so, whether there were compelling reasons to exercise discretion not to cancel her visa.

The Tribunal considered whether the applicant had complied with Condition 8202. Specifically, it examined whether she had maintained enrolment in a full-time registered course and whether that course, upon completion, would provide a qualification at the same or a higher AQF level than her original Master's degree. The evidence indicated that the applicant had ceased enrolment in her Master's program and subsequently enrolled in a Diploma of Leadership and Management (AQF level 5) and an Advanced Diploma of Translating (AQF level 6), and later a Diploma of Hospitality Management (AQF level 5). The Tribunal found that the applicant had not complied with Condition 8202(2)(b) as she had not maintained enrolment in a registered course at the same or a higher AQF level than her original Master's degree.

Despite finding a breach of the visa conditions, the Tribunal then considered its discretion to cancel the visa. The applicant provided several reasons why her visa should not be cancelled, including a compelling need to remain in Australia to complete outstanding assessments for her Master's course, the potential employment advantages of completing her qualification, her inadvertent non-compliance due to language difficulties and a lack of understanding of the regulations, and her truthful and cooperative conduct. The Tribunal had regard to these circumstances, including the applicant's submission of a Certificate of Enrolment in a Graduate Diploma of Management (AQF Level 8) and a written submission from her migration agent.

After considering all the circumstances, the Tribunal concluded that the visa should not be cancelled. It set aside the decision under review and substituted a decision not to cancel the applicant’s Subclass 500 (Student) visa.