Koirala (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Student (Temporary) (Class TU) visa, subclass 573, was cancelled. The dispute centred on whether the applicant had breached a condition of their visa, leading to the cancellation decision by the delegate.

The primary legal issue before the Tribunal was whether the applicant had complied with condition 8202 of Schedule 8 to the Migration Regulations 1994. Specifically, the Tribunal had to determine if the applicant was enrolled in a registered course, as required by condition 8202(2)(a), and if not, whether the delegate's decision to cancel the visa should be affirmed. The Tribunal also considered the exercise of discretion regarding the cancellation of the visa.

The Tribunal found that the evidence indicated the applicant had not been enrolled in a registered course of study for approximately 16 months prior to the Notice of Intention to Consider Cancellation. This failure to maintain enrolment constituted a breach of condition 8202(2)(a). In considering the discretion to cancel the visa, the Tribunal had regard to the applicant's stated purpose of study, the extent of the non-compliance, potential hardship to the applicant and their family, and the consequences of cancellation, including potential detention, removal, and limitations on future visa applications. Despite acknowledging potential hardship, the Tribunal concluded that the applicant's prolonged non-compliance with a fundamental visa condition weighed heavily against exercising discretion to set aside the cancellation.

Consequently, the Tribunal affirmed the delegate's decision to cancel the applicant's visa.