Panthi (Migration)

This matter concerned an appeal by the applicant, Panthi, against the cancellation of his Subclass 500 (Student) visa. The applicant's visa was cancelled by the Department of Home Affairs on the grounds that he was not enrolled in a full-time registered course, thereby breaching condition 8202 of the Migration Regulations 1994 (Cth). The applicant sought review of this decision before the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the applicant had complied with condition 8202 of the Migration Regulations 1994. 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 one for which the visa was granted. If a breach of this condition was found, the Tribunal then had to consider whether the discretion to cancel the visa should be exercised, having regard to the circumstances of the case.

The Tribunal found that the applicant had indeed failed to comply with condition 8202(2)(a) as he was not enrolled in a full-time registered course at the time of the cancellation. However, in considering the exercise of the discretion to cancel the visa, the Tribunal took into account the applicant's explanations for his non-compliance. These included his mother's illness, his father's job loss and cessation of financial support, and difficulties in arranging payment plans with his college. The Tribunal also noted the applicant's previous good study record, his intention to pursue a career in Nepal, and his subsequent enrolment in a different field of study that his family could afford.

Ultimately, the Tribunal concluded that, in light of the compelling circumstances presented by the applicant, the decision to cancel his visa should be set aside. The Tribunal substituted a decision not to cancel the applicant's Subclass 500 (Student) visa.