Gharti Magar (Migration)

The Administrative Appeals Tribunal considered the case of Gharti Magar, an applicant for a Subclass 500 (Student) visa. The dispute arose when the Department of Home Affairs initiated consideration for cancellation of Ms. Magar's visa under section 116(1)(b) of the Migration Act 1958, alleging non-compliance with visa conditions. The Tribunal was tasked with reviewing this decision.

The primary legal issue before the Tribunal was whether the applicant had complied with condition 8202 of her student visa, specifically regarding maintaining enrolment in a registered full-time course. The Tribunal also had to consider whether, having found a breach of condition, it should exercise its discretion to cancel the visa, taking into account the applicant's personal circumstances and the purpose of her stay in Australia.

The Tribunal found that the applicant had not complied with condition 8202(2)(a) of her visa, as she was not enrolled in a full-time registered course between November 2021 and January 2024. However, in considering the exercise of discretion to cancel the visa, the Tribunal had regard to the applicant's submissions detailing significant personal hardships, including the death of her brother, family financial difficulties, marital breakdown, and mental health issues, which impacted her ability to study. The Tribunal noted her efforts to re-engage with her studies and her desire to pursue a career in dentistry, supported by a conditional offer of enrolment. The Tribunal accepted that the applicant had taken steps to re-engage with study prior to the visa cancellation notice, not solely for the purpose of maintaining her visa.

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