Adhikari (Migration)

This matter concerned the cancellation of a Subclass 500 (Student) visa held by the applicant, Mr Adhikari. The cancellation was based on the applicant's failure to maintain enrolment in a registered full-time course, a condition of his visa. The applicant's partner, a member of the family unit, also had their visa cancelled as a consequence. The Administrative Appeals Tribunal was required to determine whether the discretion to cancel the applicant's visa should be exercised, considering the applicant's circumstances.

The primary legal issue before the Tribunal was whether, in light of the applicant's explanation for his non-compliance with visa conditions, the decision to cancel his visa was appropriate. The applicant contended that his failure to maintain enrolment was due to a combination of factors, including financial hardship exacerbated by the COVID-19 pandemic, delays in salary payments, and significant difficulties in obtaining a release from his previous education provider, Skyline College. He argued that he had made genuine attempts to enrol in new courses and complete his studies, but was hindered by the previous provider's lack of cooperation and communication.

The Tribunal considered the applicant's detailed account of his efforts to comply with his visa obligations. It acknowledged the impact of the pandemic and the challenges he faced in paying tuition fees, which led to the cancellation of his initial Confirmation of Enrolment (CoE). The Tribunal noted the applicant's persistent attempts to secure a release from Skyline College and to enrol in new courses, highlighting the delays and obstacles he encountered. On balance, and after considering all the circumstances, the Tribunal concluded that the visa should not be cancelled. The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 500 (Student) visa. The Tribunal noted it had no jurisdiction with respect to the other applicant.