Maharjan (Migration)

The applicant, a holder of a Student (Temporary) (Class TU) visa, subclass 573, sought review of the cancellation of her visa. The dispute centred on whether the applicant had breached condition 8202 of the Migration Regulations 1994, which requires a student visa holder to be enrolled in a registered course and maintain satisfactory course progress and attendance. The Administrative Appeals Tribunal (AAT) was tasked with determining if a breach had occurred and, if so, whether to exercise its discretion to cancel the visa.

The primary legal issue before the Tribunal was whether the applicant had complied with condition 8202 of her visa. This condition mandates enrolment in a registered course and satisfactory course progress and attendance. The Tribunal also had to consider the exercise of discretion regarding visa cancellation, assessing various factors including the applicant's stated purpose for being in Australia, the extent of her compliance with visa conditions, the potential hardship resulting from cancellation, the circumstances leading to the ground for cancellation, and her past and present behaviour towards the Department and the Tribunal.

The Tribunal found that the applicant had breached condition 8202(2) as she had not been enrolled in a registered course since November 2015, a fact she had confirmed in a previous response. Despite the applicant's stated desire to provide oral evidence, she failed to attend the scheduled hearing, and the Tribunal was satisfied she had been properly notified and reminded. In considering the discretion to cancel the visa, the Tribunal found that the applicant's stated desire to complete her studies for future career prospects in Nepal did not constitute a compelling need to remain in Australia. While acknowledging the applicant's claims of financial hardship and parental distress, the Tribunal deemed these concerns speculative and outweighed by the seriousness of the visa condition breach. The Tribunal also gave limited weight to the applicant's personal circumstances, such as marriage breakdown and parental marital tensions, as there was insufficient detail to demonstrate how these incapacitated her from enrolling in a course or explained why she did not return to Nepal.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's visa, concluding that, on the totality of the circumstances, the cancellation was warranted.