Australian Immigration Daily News

What options are available to you if you come to Australia on a Higher Education student visa and you discover that the course of study is too tough for you and you are failing?

Can you withdraw from the course and then re-enroll in a vocational education training course that might be easier for you to handle?

And if you do that, will withdrawing from the higher education course place your student visa in jeopardy?

A recent decision of the Federal Circuit Court of Australia, Abishek v Minister for Immigration & Anor (2016) FCCA 82 (2 February 2016) provides some answers to these questions.

The factual background of the case was as follows:

The student had been granted a student visa to come to Australia to undertake a program of coursework involving a diploma and a bachelor’s degree in information technology.  After he failed the first semester, he withdrew from the course and then enrolled in a diploma of business course at a different institution. This second course, in business, was not one that was identified in the relevant legislative instrument as being one  that was specified for a Higher Education student visa. 

The student thus in breach of Condition 8516 of his visa.   This Condition was written in the following terms:

“……the holder must continue to be a person who would satisfy the primary and secondary criteria as the case requires for the grant of the visa”.

On the basis that the student was no longer enrolled in the higher education course, the Department proceeded to cancel his visa.  The student also sought a subclass 572 visa for the business diploma course, but the Department also refused this visa application.

After the Tribunal affirmed the cancellation of the student’s original Higher Education visa, he sought judicial review of the decision in the Federal Circuit Court.

Unfortunately for the student, the Court concluded that he “did not have a leg to stand on”.

It found, first of all, that there had been a proper basis in law to support the finding that he had breached Condition 8516.  In the Court’s view, it was sufficient that he was no longer enrolled in a higher education course that was specified in the legislative instrument.  Being enrolled in a vocational education course that was not listed in the instrument was not enough to avoid a breach. Indeed, the Court went further and observed that even if the student had transferred courses to another higher education course that was in fact listed in the legislative instrument, he would nonetheless have been in breach of the condition.

The Court also determined that the Department and the Tribunal had correctly determined that it was appropriate to proceed with the cancellation of the visa on discretionary grounds. 

First, the Court was not prepared to overturn the Tribunal’s finding that the fact that the student had found the  original IT course to be “too hard” was not a circumstance beyond his control.

Secondly, the Court rejected the student’s submission that the Tribunal had committed jurisdictional error by assigning “too little weight” to the fact that the reason why he had breached Condition 8516 was because he had failed courses during his first semester of study.  The Court took the view that this circumstance was solely a matter relating to the “merits” of the decision. Therefore, it was entirely a matter for the Tribunal to decide how much “weight” or importance to give to it.

Lastly, the Court held that the Tribunal had not fallen into error when it determined that there were no “extenuating or compassionate” circumstances in the case that should prevent the cancellation of the visa. The only arguments that the student could muster against the cancellation of his visa were that he had borrowed money from relatives to take the original course in IT, that returning to India would cause disappointment to his family, and that being forced to go back would cause him to suffer loss of time and money.

What does the result in this case tell us? That withdrawing from the approved higher education course that was the basis for the grant of a student visa may well be something that will lead to the cancellation of a student visa.  That the Department, Tribunal and the courts are very likely to adopt the position that student visas are granted for the purpose of attending specific higher education courses. That changing from a an approved higher education course that is listed on the legislative instrument to a vocational education course that is not listed will not be viewed as a basis for avoiding a breach of Condition 8516. And that even enrolling in a different higher education course, even if it is also on the list of approved higher education courses, may also lead to a breach. 

So, what is a student who finds her/himself floundering to do: As the saying goes, it is a better course to “stay the course”, and to attempt to achieve “satisfactory progress”, than it is to quit altogether.

Or, as the (obscure!) British writer, W.E. Hickson, put it: "If at first you don’t succeed, try, try again!” 

(I bet, dear readers, that no one out there guessed where that famous expression came from! Thanks Google! And thanks Wikipedia!)

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