Basyal (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Student (Temporary) (Class TU) visa was cancelled. The dispute centred on whether the applicant had breached a condition of their visa, leading to its cancellation by the Department. The applicant sought to have this cancellation decision reviewed by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant had complied with Condition 8202 of the Migration Regulations 1994. Specifically, the Tribunal had to determine if the applicant had remained enrolled in a registered course of study, as required by Condition 8202(2)(a), and if any alleged non-compliance was a significant breach warranting visa cancellation. The Tribunal also considered whether, in the exercise of its discretion, the visa cancellation should be affirmed, taking into account the applicant's stated reasons for non-compliance and the purpose of their stay in Australia.

The Tribunal found that the applicant had not been enrolled in a registered course of study for a significant period, from March 2016 until the delegate's decision in February 2017, and had not been enrolled since the visa cancellation. The applicant conceded this lack of enrolment, attributing it to stress from a divorce and subsequent difficulty in obtaining a Confirmation of Enrolment. However, the Tribunal noted a history of cancelled enrolments due to non-commencement or non-payment of fees, and that the applicant had only successfully completed a basic English course. The Tribunal concluded that the breach of Condition 8202(2) was significant and that the applicant had not been fulfilling the purpose of their student visa for the majority of their time in Australia. Despite acknowledging the applicant's claims of mental health difficulties and a desire to study, the Tribunal was not convinced that these challenges precluded enrolment or that the applicant had a compelling need to remain in Australia for higher education purposes.

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