Kharel (Migration)

This matter concerned an application for review of a decision by a delegate of the Minister for Home Affairs to cancel the applicant's subclass 500 student visa. The cancellation was based on the applicant's failure to comply with condition 8202 of Schedule 8 to the Migration Regulations 1994, specifically that he was not enrolled in a registered course. The delegate was not satisfied that the grounds for cancellation were outweighed by reasons not to cancel the visa.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202, and if so, whether the visa should be cancelled. Condition 8202, as relevant, required the applicant to be enrolled in a registered course. The applicant accepted that he had not been enrolled in a registered course from 25 May 2018 until he re-enrolled in September 2019, having previously been enrolled in a Diploma of Information Technology.

The Tribunal found that the applicant had indeed breached condition 8202. Having established the breach, the Tribunal then considered whether to exercise its discretion to cancel the visa. The Tribunal had regard to the circumstances of the case, including matters raised by the applicant and the Department's Procedures Advice Manual. The applicant, a 21-year-old Nepalese national, had come to Australia solely for the purpose of studying a package of IT courses. The Tribunal gave this fact considerable weight in favour of not cancelling the visa. The Tribunal affirmed the decision under review.