Pandey (Migration)

This matter concerned an appeal by an applicant against the decision of the Department of Home Affairs to cancel their Student (Temporary) (Class TU) (Subclass 500) visa. The applicant had initially enrolled in a Master of International Tourism and Hotel Management but subsequently changed to a Master of Professional Accounting, citing career progression. The visa was cancelled on the grounds that the applicant had breached condition 8202 of the Migration Regulations 1994 by failing to maintain enrolment in a registered course.

The primary legal issue before the Tribunal was whether the applicant had complied with condition 8202 of their visa. This condition requires a student visa holder to be enrolled in a full-time registered course and to maintain enrolment in a course that leads to a qualification at the same or a higher level than the original course. The Tribunal also considered whether, even if a breach had occurred, there were grounds to exercise discretion and set aside the cancellation.

The Tribunal found that the applicant had not been enrolled in a registered course for a significant period, from October 2017 until the visa cancellation in September 2018. This non-enrolment was attributed to the applicant's inability to pay tuition fees after their family ceased financial support. The Tribunal was not satisfied that the applicant's circumstances were beyond their control, nor that they had a compelling need to remain in Australia for the purpose of study, given the extended period of non-enrolment and the applicant's stated intention to pursue lower-level vocational courses. The Tribunal also noted that the proposed lower-level courses might constitute a further breach of condition 8202(2)(b).

The Tribunal affirmed the decision to cancel the applicant's visa, concluding that the breach of condition 8202 was established and that there were no grounds to exercise discretion in favour of the applicant.