Adhikari (Migration)

The Administrative Appeals Tribunal considered the case of Mr. Adhikari, who held a Student (Temporary) (Class TU) visa, Subclass 500. The dispute concerned the cancellation of his visa by the Department of Home Affairs on the grounds that he was not enrolled in a registered course, thereby breaching a condition of his visa. Mr. Adhikari sought to have this cancellation decision reviewed and affirmed by the Tribunal.

The primary legal issue before the Tribunal was whether Mr. Adhikari had breached condition 8202 of Schedule 8 to the Migration Regulations 1994. This condition requires a student visa holder to be enrolled in a full-time registered course and to maintain satisfactory course progress and attendance. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa.

The Tribunal found that Mr. Adhikari had indeed breached condition 8202(2)(a) as he was not enrolled in a registered course between 9 August 2017 and the date of the visa cancellation on 20 September 2018, a period of over 13 months. While Mr. Adhikari cited financial difficulties and failure in his initial subjects as reasons for his non-enrolment, the Tribunal was not satisfied that he had demonstrated a genuine intention or capacity to re-enrol and complete his studies. The Tribunal noted the significant period of non-enrolment and expressed doubt as to whether Mr. Adhikari had genuinely stayed in Australia for the purpose of study.

Consequently, the Tribunal affirmed the decision to cancel Mr. Adhikari's visa. The Tribunal concluded that, considering all the circumstances, the cancellation of the visa was the appropriate course of action.