Pokhrel (Migration)

This matter concerned an appeal to the Administrative Appeals Tribunal (the Tribunal) regarding the cancellation of the applicant's Student (Temporary) (Class TU) visa, specifically a Subclass 573 Higher Education Sector visa. The dispute arose because the applicant had allegedly failed to comply with condition 8202 of the Migration Regulations 1994, which mandates enrolment in a registered course of study. The delegate of the Minister had cancelled the applicant's visa on this basis.

The Tribunal was required to determine two primary legal issues: first, whether the applicant had breached condition 8202 of their visa by not being enrolled in a registered course of study; and second, if a breach was established, whether the Minister's delegate had correctly exercised their discretion to cancel the visa. Condition 8202, as relevant, required the visa holder to be enrolled in a registered course and to maintain satisfactory course progress and attendance.

The Tribunal found that the applicant's enrolment in a Diploma in Information Technology was cancelled on 26 October 2016, and they had not commenced the subsequent Bachelor of Information Technology course. Consequently, the applicant had not been enrolled in a registered course of study since that date, and specifically was not enrolled on 1 September 2017 when the visa was cancelled. This failure to comply with condition 8202(2)(a) was found to be a mandatory breach, thus establishing the ground for cancellation. In considering the discretion to cancel, the Tribunal noted the applicant's stated purpose for the visa was to complete specific higher education courses. However, after his enrolment was cancelled, he remained in Australia for reasons including not wanting to face his parents and waiting for the visa cancellation to appeal. The Tribunal was not satisfied that the applicant had a compelling need to remain in Australia, particularly as he was no longer fulfilling the purpose for which the visa was granted.

The Tribunal affirmed the decision to cancel the applicant's visa.