Maharjan (Migration)

The applicant, who held a Subclass 500 (Student) visa, sought review of the Minister's decision to cancel that visa. The cancellation was based on the applicant's failure to comply with a condition of her visa, specifically condition 8202 of the Migration Regulations 1994, which requires a student visa holder to be enrolled in a registered course. The applicant acknowledged that grounds for cancellation existed.

The primary legal issue before the court was whether the Minister's discretion to cancel the visa, after the ground for cancellation was established, had been exercised correctly. This involved considering all relevant circumstances, including the applicant's purpose for travel and stay, and the reasons for her non-enrolment. The court was required to determine if the applicant's circumstances warranted a decision not to cancel the visa.

The court found that the applicant had not been enrolled in a full-time registered course for a significant period of 19 months, from December 2021 until after receiving a notice of intention to consider cancellation in July 2023. While the court acknowledged and empathised with the applicant's personal difficulties, including her father's death, her divorce, and her mother's financial hardship, it noted that if an individual resides in Australia on a student visa, study should take priority over work. The applicant's evidence of working during this period, while not studying, raised concerns about her true intentions for residing in Australia. The court concluded that despite the applicant's personal circumstances, the prolonged period of non-enrolment and the priority given to work over study weighed against exercising discretion not to cancel the visa.

The Tribunal affirmed the decision to cancel the applicant's Subclass 500 (Student) visa.