Ghimire (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 573 Higher Education Sector visa of the applicant, a 23-year-old man from Nepal. The dispute centred on whether the applicant had breached condition 8202(2) of his visa, which requires a student visa holder to be enrolled in a registered course. The applicant had been un-enrolled for a period of 11 months, from January 2018 to January 2019, after dropping out of a Bachelor of Business course and subsequently undertaking a Diploma of Accounting.

The primary legal issue before the Tribunal was whether the applicant had complied with condition 8202(2) of his visa. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, despite the breach. The Tribunal was required to assess the applicant's circumstances, including the reasons for his non-enrolment, his subsequent efforts to re-enrol and continue his studies, and the potential hardship cancellation might cause.

The Tribunal found that the applicant had indeed breached condition 8202(2) by remaining un-enrolled for 11 months. However, in exercising its discretion regarding cancellation, the Tribunal gave significant weight to the applicant's demonstrated commitment to completing his studies. This included his re-enrolment in a Diploma of Accounting to refresh his knowledge and his current successful progress in a Bachelor of Accounting at the University of Tasmania. The Tribunal also considered the applicant's stated intention to return to Nepal to assist his father in the family business, and the hardship he would face if unable to complete his qualification. While acknowledging the 11-month non-enrolment as a significant breach, the Tribunal concluded that, on balance, the applicant's efforts to rectify his situation and his clear intention to complete his studies weighed in favour of not cancelling his visa.

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