Tribunal: Member Tigiilagi Eteuati
A delegate of the Minister for Immigration and Border Protection cancelled the applicant’s Student visa because he did not remain enrolled in a registered course, which was a condition of the visa.[1] The Minister (or a delegate) may cancel a visa when the holder has not complied with a condition.[2]
When the applicant arrived in Australia in February 2015 he was enrolled in a Diploma of Information Technology to be followed by a Bachelor of Information Technology. He said that he commenced the Diploma course at the beginning of 2015 but found the course too difficult and failed all four of his subjects in the first semester. He abandoned that Diploma and his enrolment in the Bachelor of Information Technology was cancelled for non-commencement of studies on 28 April 2016. The Tribunal noted that the applicant was in breach of his requirements from this date as he was not enrolled in a higher education course. In mid-2016 the applicant enrolled in an Advanced Diploma of Leadership and Management which he completed on 29 January 2017 but did not enrol in a new course after this. The applicant’s visa was cancelled on 18 April 2017. He was granted a bridging visa in July 2017, which did not prevent him from working or studying, but he did not enrol in a registered course until March 2018.
The applicant said that after he completed his advanced diploma in January 2017 a migration agent applied for him to undertake a bachelor’s degree but that no tertiary institution would offer him enrolment because he had ceased his initial information technology studies. The applicant provided no documentary evidence to support his assertion that he had applied to be enrolled in bachelor degree courses. The applicant said that he knew that it was a condition of his visa to remain enrolled in a higher education course.
The applicant also enrolled and completed two vocational courses and failed to enrol in another bachelor course, instead enrolling in a further 3 vocational courses after his visa was cancelled. The Tribunal view is that he may not have the desire or will to successfully undertake a higher education course in Australia. The Tribunal did not accept that the applicant made any significant attempts to enrol in a bachelor degree course after he completed his advanced diploma. He provided no documentary evidence of any attempts that he made and after July 2017 he had study and work rights. The Tribunal does not accept that no tertiary institute would enrol the applicant in a bachelor’s course or at very least, in a series of courses leading to a bachelor degree. The Tribunal is willing to accept that the applicant and his family members may experience disappointment and shame that the applicant’s visa was cancelled before he was able to complete a course in Australia. The Tribunal has also considered that, as the applicant’s visa was been cancelled, he may have to wait some time to be granted another in Australia.
The Tribunal affirmed the decision to cancel the applicant’s Class TU visa.
Read the full written decision on AustLII.
[1] Condition 8202 of Schedule 8 to the Migration Regulations 1994