Adhikari (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Student (Temporary) (Class TU) visa, subclass 500, was cancelled. The dispute centred on whether the applicant had breached a condition of their visa, specifically condition 8202 of Schedule 8 to the Migration Regulations 1994 (Cth), which requires a student visa holder to be enrolled in a full-time registered course.

The Tribunal was required to determine if the applicant had complied with condition 8202, which mandates enrolment in a full-time registered course, maintaining enrolment in a course leading to an Australian Qualifications Framework qualification at the same or higher level than the original course, and achieving 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, taking into account various factors including extenuating circumstances, hardship, and Australia's international obligations.

The Tribunal found that the applicant had not complied with condition 8202(2)(a) as they were not enrolled in a full-time registered course from 16 December 2021 until 26 October 2022. While the applicant provided explanations for this period of non-enrolment, including family issues and the impact of COVID-19, the Tribunal concluded that these did not constitute extenuating circumstances beyond the applicant's control that would outweigh the breach. After considering all relevant factors, including those outlined in the Department's Procedural Instruction on general visa cancellation powers, the Tribunal affirmed the decision to cancel the applicant's visa.