Student Visa Cancelled Due to Non-Compliance With Student Visa Condition 8516
Background facts
The applicant is a holder of Subclass 573 Higher Education Sector visa.
The applicant was studying a Bachelor's degree at the Federation University at the time.
The study felt very hard because, at the time, the applicant was emotionally effected by the earthquake in Nepal and the damages it had caused his family’s house.
There was a gap when he was not enrolled in a course of higher education. He was enrolled in the university in March 2015 but stopped studying after one semester. He passed three of four subjects.
He later started a Diploma course at Strathfield which he completed in September 2016.
He enrolled in a Bachelor of Information Technology at a college in 2017.
On 20 June 2017, the applicant’s 573 visa was canceled under s.116(1)(b) on the basis that the applicant had not complied with Condition 8516 which requires that the Visa holder must continue to be a person who would satisfy the primary or secondary criteria as the case requires, for the grant of the visa.
Relevant provision
Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(b). If satisfied that the ground for visa cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.
The Ground for Visa cancellation
Information from the Provider Registration and International Student Management System (PRISMS) indicates that between 5 August 2015 and 29 May 2017 the applicant was no longer enrolled in a Bachelor’s degree or Master’s course and was not enrolled in a course of study that is a principal course of a type specified for subclass 573 visas by the Minister in an instrument made under regulation 1.40A. Therefore, the applicant did not continue to be a person who would satisfy either subclauses 573.231 or 573.223(1A).
Based on the above, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.
Consideration of discretion
The Tribunal has considered the following factors:
the purpose of the applicant’s travel to and stay in Australia
whether the applicant has a compelling need to travel to or remain in Australia
the extent of compliance with visa conditions
the degree of hardship that may be caused to the applicant or his family members should his student visa be cancelled
the circumstances in which the ground for cancellation arose
the past and present behaviour of the applicant towards the Department.
whether there are persons in Australia whose visas would, or may be, cancelled under s140 as a result of the cancellation of the applicant’s visa.
whether there are any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation of the applicant’s visa.
whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
Other relevant matters
After considering the above considerations, the Tribunal has noted that the applicant has spent a not insubstantial amount of his time in Australia studying and fulfilling the purpose of his being in Australia, and he has complied with his other visa conditions. The cancellation will cause disruption to his life, study and career plans. Considering the circumstances as a whole, particularly the circumstances in which the breach of Condition 8516 arose is relevant to the earthquake in Nepal (which is largely outside of the applicant’s control). The Tribunal accepts that setting aside the cancellation will remove a potential impediment to the applicant pursuing further study in Australia, and therefore concludes that the visa should not be cancelled.
If your visa is risking being cancelled then we recommend that you contact a professional to see what your options are.
How Can Agape Henry Crux Help
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