Karki (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Subclass 500 (Student) visa was cancelled. The cancellation was based on the applicant's alleged failure to comply with condition 8202 of the Migration Regulations 1994, specifically by not being enrolled in a registered course of study. The applicant, a Nepalese national, had initially enrolled in a Bachelor of Integrated Media but failed subjects due to returning to Nepal to care for her unwell mother.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of her visa, which requires a student visa holder to be enrolled in a registered course. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa under section 116(1) of the Migration Act 1958. The Tribunal was required to weigh various factors, including the applicant's purpose for being in Australia, the extent of her non-compliance, and the circumstances that led to the ground for cancellation.

The Tribunal found that the applicant had indeed not been enrolled in a registered course for approximately 18 months, constituting a significant period of non-compliance with condition 8202(2). However, in considering the exercise of discretion, the Tribunal took into account the applicant's genuine desire to continue studying in Australia, her recent marriage to a student visa holder, and the compelling circumstances that led to her academic difficulties, namely her mother's ill health. Despite the significant period of non-compliance, the Tribunal concluded that the visa should not be cancelled.

Consequently, the Tribunal set aside the decision to cancel the applicant's Subclass 500 (Student) visa and substituted a decision not to cancel the visa.