Kandel (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, leading to a potential breach of visa condition 8202.

The Tribunal was required to determine whether the applicant had breached condition 8202 of the Migration Regulations 1994, specifically by not being enrolled in a registered course. 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 presented.

The Tribunal found that the applicant had indeed breached condition 8202(2)(a) by not being enrolled in a registered course for a substantial period of approximately 14 months. However, the Tribunal exercised its discretion not to cancel the visa. This decision was based on the applicant's explanation of extenuating circumstances, including the devastating 2015 earthquake in Nepal which caused the death of his grandfather, significant damage to his family's business properties (their principal source of income), and subsequent financial instability and emotional distress. These factors prevented him from enrolling in studies for a considerable period. The Tribunal also noted that the applicant had made an attempt to re-engage in studies after receiving the notice of intention to cancel.

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