Parajuli (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 500 (Student) visa of the applicant, Mr. Parajuli. The dispute centred on whether the applicant had breached condition 8202(2)(b) of the Migration Regulations 1994, which requires a student visa holder to maintain enrolment in a course at the same or a higher Australian Qualifications Framework (AQF) level than the course for which the visa was granted.

The Tribunal was required to determine if the applicant had complied with condition 8202(2)(b) and, if not, whether there were compassionate or compelling reasons to exercise discretion and not cancel the visa. The applicant's visa was initially granted for a Bachelor of Nursing (AQF Level 7). His enrolment was cancelled due to late payment of fees, but he re-enrolled. Subsequently, his enrolment was cancelled again, this time citing "Student notifies Cessation of Studies." He then enrolled in a Diploma of Leadership and Management (AQF Level 5), which is a lower AQF level.

The Tribunal found that the applicant had not complied with condition 8202(2)(b) as he had not maintained enrolment in a course at the same or a higher AQF level. However, in considering the exercise of discretion, the Tribunal gave significant weight to the applicant's explanation for the breach. This included evidence of family medical and financial hardship, as well as the applicant's own experience of depression, which impacted his ability to manage his tuition fees and his mental state. The Tribunal found these to be compassionate and compelling reasons for the non-compliance.

Consequently, the Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel it.