ACHARYA (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Student (Temporary) (Class TU) Subclass 573 visa was cancelled. The dispute centred on whether the applicant had breached a condition of their visa, leading to the cancellation decision by the delegate, which the applicant sought to have affirmed by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant had complied with condition 8202 of Schedule 8 to the Migration Regulations 1994. Specifically, the Tribunal had to determine if the applicant was enrolled in a registered course as required by subclause 8202(2), and if not, whether the discretion to cancel the visa should be exercised. The applicant also raised extenuating circumstances, including financial hardship and family issues in Nepal following an earthquake, as reasons why the cancellation should not be affirmed.

The Tribunal found that the applicant had ceased to be enrolled in a registered course from 11 May 2016, acknowledging this fact during the hearing. Consequently, the applicant had failed to comply with condition 8202(2). In considering the exercise of discretion to cancel the visa, the Tribunal had regard to the applicant's submissions regarding extenuating circumstances, including the impact of the earthquake in Nepal on their family and their subsequent financial difficulties, which had affected their ability to study. However, the Tribunal also noted the applicant's lack of study history following the visa cancellation and that their current enrolment in a registered course did not sufficiently demonstrate an ongoing commitment to study at the time of the decision.

Balancing these factors, the Tribunal determined that the discretion to cancel the visa should be exercised. The Tribunal affirmed the delegate's decision to cancel the applicant's visa.