Ghale (Migration)

The Administrative Appeals Tribunal considered the case of Ms. Ghale, who sought review of the cancellation of her Subclass 500 student visa. The Department of Home Affairs had cancelled Ms. Ghale's visa on the grounds that she had breached a condition of her visa by not being enrolled in a registered course of study for a period of approximately 14 months prior to the Notice of Intention to Consider Cancellation (NOICC). Ms. Ghale contended that her enrolment had been cancelled due to non-payment of fees, and that this situation arose from a miscommunication with her education provider and personal circumstances, including family bereavement and mental health challenges during the COVID-19 pandemic.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) existed, and if so, whether the Tribunal should exercise its discretion to cancel the visa. The Tribunal was required to determine if Ms. Ghale had failed to comply with condition 8202 of her visa, which mandates enrolment in a registered course, and whether any circumstances beyond her control excused this failure. The Tribunal also had to consider the applicant's personal circumstances and submissions in deciding whether to affirm the cancellation.

The Tribunal found that Ms. Ghale had indeed failed to maintain enrolment in a registered course, thus breaching condition 8202(2)(a). While acknowledging the applicant's personal difficulties, including family bereavement and isolation during the pandemic, and a claimed miscommunication with her education provider regarding fee payments and deferral requests, the Tribunal concluded that these circumstances did not constitute a situation beyond her control that would excuse the breach. The Tribunal noted that Ms. Ghale had not responded to the NOICC and that the evidence presented regarding the alleged miscommunication lacked definitive proof. Despite recognising the significance of visa cancellation, the Tribunal, on balance, determined that the ground for cancellation was established and that the discretion to cancel the visa should be exercised.

Consequently, the Tribunal affirmed the decision to cancel Ms. Ghale's Subclass TU visa.