BISTA (Migration)

The Administrative Appeals Tribunal (the Tribunal) considered the case of BISTA, an applicant seeking review of a decision to cancel their Student (Temporary) (Class TU) visa, subclass 573 Higher Education Sector. The cancellation was based on the applicant's failure to maintain satisfactory academic progress and to be enrolled in a registered course. The applicant argued that disruptions caused by the Nepal earthquake, coupled with family financial hardship, had impacted their ability to meet these requirements, leading them to change to a vocational course, specifically a music course which was not available in Nepal.

The Tribunal was required to determine whether the grounds for cancellation were established, and if so, whether there were compelling reasons to set aside the cancellation decision. Specifically, the Tribunal had to assess the extent to which the applicant's academic progress and enrolment issues were within their control, considering the impact of the natural disaster and financial difficulties. The Tribunal also had to consider the applicant's subsequent enrolment in a vocational course as a factor in determining the appropriate outcome.

In its reasoning, the Tribunal acknowledged that while the applicant had not maintained satisfactory academic progress in their higher education course, a significant portion of the disruption was attributable to circumstances beyond their control, namely the Nepal earthquake and subsequent family financial hardship. The Tribunal found that the applicant's decision to change to a vocational course, particularly one not available in their home country, demonstrated a genuine intention to continue their studies. Consequently, the Tribunal concluded that the grounds for cancellation were only partially established and that compelling reasons existed to set aside the original decision.

The Tribunal ordered that the decision under review be set aside and substituted with a decision to grant the applicant a Student (Temporary) (Class TU) visa, subclass 573 Higher Education Sector.