ADHIKARI (Migration)

The Administrative Appeals Tribunal considered the case of ADHIKARI, an applicant for a Student (Temporary) (Class TU) visa, subclass 573 Higher Education Sector. The dispute arose from the cancellation of the applicant's visa by the Department of Immigration and Border Protection. The applicant sought review of this decision before the Tribunal.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of Schedule 8 to the Migration Regulations 1994, which would justify the cancellation of his visa under section 116(1) of the Migration Act 1958. Specifically, the Tribunal had to determine if the applicant was enrolled in a registered course of study as required by condition 8202(2).

The Tribunal found that the applicant had not complied with condition 8202(2) because he had not been enrolled in a registered course of study since 7 May 2015, despite his arrival in Australia in February 2014. While the applicant presented evidence of subsequent enrolments, the Tribunal noted that these were not commensurate with the subclass 573 visa requirements and that the applicant had not disputed the period of non-enrolment. The Tribunal then considered its discretion to cancel the visa, taking into account the applicant's stated purpose of study, the financial and emotional difficulties he faced following his grandfather's death, and his current commitment to his studies. However, the Tribunal concluded that, on balance, the extent of the breach outweighed these mitigating factors.

The Tribunal affirmed the decision to cancel the applicant's visa.