Pokhrel (Migration)

The Administrative Appeals Tribunal considered the case of Mr Pokhrel, a holder of a Student (Temporary) (Class TU) visa, subclass 573 Higher Education Sector. The dispute arose when the Department of Immigration and Border Protection proposed to cancel Mr Pokhrel's visa on the grounds that he was not enrolled in a registered course of study, thereby breaching condition 8202 of the Migration Regulations 1994.

The Tribunal was required to determine whether Mr Pokhrel had breached condition 8202 of his visa, specifically whether he had failed to maintain enrolment in a registered course of study. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, having regard to the applicant's circumstances and relevant government policy guidelines.

The Tribunal found that Mr Pokhrel had indeed not been enrolled in a registered course for approximately 11 months, which constituted a breach of condition 8202(2). However, in considering the discretion to cancel the visa, the Tribunal took into account the applicant's stated intention to study in Australia, his subsequent enrolment changes, and the significant personal difficulties he faced, including psychological distress, the impact of the Nepal earthquake on his family's business, and his brother's serious accident. The Tribunal accepted the evidence presented regarding these extenuating circumstances.

Ultimately, the Tribunal concluded that, after considering all the circumstances, the visa should not be cancelled. The decision under review was set aside, and a substitute decision was made not to cancel Mr Pokhrel's Subclass 573 Higher Education Sector visa.