Gurung (Migration)

This matter concerned an appeal by the applicant against the cancellation of his Subclass 500 (Student) visa. The visa was cancelled by the Department on the grounds that the applicant had failed to comply with a condition of his visa, specifically condition 8202, which requires a student visa holder to be enrolled in a full-time registered course of study or training. The applicant had been enrolled in a Certificate III and IV in Commercial Cookery and a Diploma of Hospitality Management, but his enrolment in the Certificate III was cancelled for disciplinary reasons on 30 August 2021. He remained unenrolled in a full-time registered course until after he received a notice of intention to consider cancellation.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was made out, and if so, whether the discretion to cancel the visa should be exercised. The applicant acknowledged that the ground for cancellation existed, as he was not enrolled in a full-time registered course of study from August 2021 until after receiving the notice of intention to cancel. The Tribunal was therefore required to consider all relevant circumstances in deciding whether to affirm the cancellation.

The Tribunal considered the applicant's submissions regarding the breakdown of his marriage, which he claimed led to depression and an inability to concentrate, impacting his studies. However, the Tribunal found inconsistencies in the applicant's evidence, particularly concerning his claims of being confined to his room due to depression while also working at a restaurant. The Tribunal was not persuaded by the applicant's explanation for his prolonged period of non-enrolment and expressed concerns about his credibility. No evidence of seeking professional mental health assistance was provided.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's Subclass 500 (Student) visa, finding that the ground for cancellation was established and that the exercise of discretion to cancel the visa was warranted given the circumstances and the applicant's lack of credibility.