2108793 (Migration)

This matter concerned an appeal by a student visa holder against the cancellation of his Subclass 500 (Student) visa. The applicant, a citizen of Nepal, arrived in Australia in February 2019 on a visa valid until March 2022. The visa was cancelled on the basis that the applicant had breached condition 8202 of the Migration Regulations 1994 (Cth) by failing to maintain enrolment in a full-time registered course.

The primary legal issue before the Tribunal was whether the applicant had complied with condition 8202 of his student visa. This condition requires the visa holder to be enrolled in a full-time registered course, maintain enrolment in a course leading to a qualification at the same or higher level than the original course, and not be certified by their education provider as having unsatisfactory course progress or attendance. The Tribunal was also required to consider whether, having found a breach, the discretion to cancel the visa should be exercised.

The Tribunal found that the applicant had not complied with condition 8202 as his enrolment in a course had ceased on 21 January 2021, and he had not been enrolled in a full-time registered course since that date. While the applicant provided explanations for this, including mental health issues stemming from criminal charges and difficulties with his email, the Tribunal was not satisfied that these adequately explained the prolonged gap in enrolment. The Tribunal considered various documents, including the applicant's resume, previous enrolment details, and letters of support, but ultimately concluded that the applicant had failed to demonstrate compliance with the visa conditions.

The Tribunal affirmed the decision to cancel the applicant's visa, finding that the ground for cancellation under s 116(1)(b) of the Migration Act 1958 (Cth) was established and that the discretion to cancel the visa should be exercised in the circumstances.