Bhusal (Migration)

This matter concerned an appeal by Mr. Bhusal against the cancellation of his Subclass 573 Higher Education Sector student visa. The visa was cancelled on the grounds that he had breached condition 8202 of the Migration Regulations 1994, specifically by not being enrolled in a registered course of study. Mr. Bhusal contended that he had taken a six-month holiday from his studies and that his agent had failed to pay his course fees to the educational institution, leading to the cancellation of his enrolment without his knowledge.

The primary legal issue before the Tribunal was whether Mr. Bhusal had breached condition 8202 of his visa. This condition requires a student visa holder to be enrolled in a registered course and to maintain satisfactory course progress and attendance. A secondary issue was whether, having found a breach, the Tribunal should exercise its discretion to cancel the visa. The Tribunal was required to consider various factors, including the purpose of the visa holder's stay, the extent of compliance with visa conditions, the hardship that cancellation might cause, and the circumstances in which the ground for cancellation arose.

The Tribunal found that Mr. Bhusal had not been enrolled in a registered course since 27 April 2015, thereby breaching condition 8202(2). Despite Mr. Bhusal's claims regarding his agent's alleged failure to pay fees and his intention to seek sponsorship for a Subclass 457 visa, the Tribunal did not accept his explanation for the non-enrolment. Crucially, Mr. Bhusal failed to provide satisfactory evidence that he had paid his course fees to his agent, and a text message produced did not confirm disbursement of funds for payment to the college. The Tribunal concluded that the factors weighing against cancellation were significantly outweighed by the circumstances of the breach, particularly as the applicant's explanation was not accepted and there was doubt about his financial capacity to resume studies.

Consequently, the Tribunal affirmed the decision to cancel Mr. Bhusal's visa. The Tribunal noted that it had no jurisdiction with respect to the other named applicants.