Bakshi (Migration)

The Administrative Appeals Tribunal (the Tribunal) considered the case of Bakshi, a holder of a Student (Temporary) (Class TU) visa (Subclass 573). The dispute concerned the cancellation of Ms. Bakshi's visa after she failed to maintain enrolment in a registered course of study.

The primary legal issue before the Tribunal was whether the cancellation of Ms. Bakshi's visa was a proper exercise of discretion, given her circumstances. Specifically, the Tribunal had to determine if the applicant had complied with condition 8202(2) of her visa, which requires a student visa holder to be enrolled in a registered course of study. If non-compliance was found, the Tribunal then had to consider whether the discretion to cancel the visa should be exercised.

The Tribunal found that Ms. Bakshi had not been enrolled in a registered course of study since 25 September 2017, thus breaching condition 8202(2). However, in considering the discretion to cancel the visa, the Tribunal had regard to the applicant's stated purpose for her stay in Australia, which was to study a Bachelor of Nursing. The Tribunal noted that Ms. Bakshi had departed Australia to care for her unwell mother in India, subsequently experienced depression, and faced difficulties in re-enrolling with her university. Despite attempts to re-enrol and seek legal advice, her enrolment was cancelled. The Tribunal also noted that she had paid enrolment fees and received a refund after her visa was cancelled. The Tribunal concluded that the decision to cancel the visa was not a proper exercise of discretion.