Dhungana (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Student (Temporary) (Class TU) visa, Subclass 573 (Higher Education Sector), held by the applicant. The dispute arose because the applicant was not enrolled in a registered course of study at the time of the delegate's decision, leading to a potential breach of visa condition 8202.

The Tribunal was required to determine whether the applicant had breached visa condition 8202, specifically by failing to be enrolled in a registered course of study. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the applicant's visa, having regard to the circumstances of the case.

The Tribunal found that the applicant had indeed failed to comply with condition 8202(2) as her enrolment at Victoria University had been cancelled due to non-payment of fees. However, despite this technical breach, the Tribunal concluded that the applicant had substantially complied with her obligation to maintain enrolment. This conclusion was based on evidence demonstrating a continuous genuine intention to complete her Bachelor of Engineering (Civil Engineering) in Australia, satisfactory academic progress throughout her studies, and that her inability to study after visa cancellation was due to restrictions on her bridging visa. The Tribunal also noted that the applicant's financial dependence on her father for timely fee payments and circumstances beyond her control contributed to the situation.

Consequently, the Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel it.