Poudel (Migration)

This matter concerned an appeal to the Administrative Appeals Tribunal (AAT) by an applicant whose Higher Education Sector (Class TU) visa, Subclass 573 (Student) (Temporary), was cancelled by the Department of Home Affairs. The dispute centred on whether the applicant had breached condition 8202 of the Migration Regulations 1994, which requires a student visa holder to be enrolled in a registered course and maintain satisfactory course progress and attendance. The applicant had not provided a written response to the Notice of Intention to Consider Cancellation, although his migration agent had assured the delegate of a forthcoming submission.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of his visa. This condition mandates enrolment in a registered course and satisfactory academic progress and attendance. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, weighing various factors for and against cancellation. The applicant argued that financial difficulties stemming from his father's business downturn and his mother's health issues prevented him from paying tuition fees, leading to the cancellation of his Confirmation of Enrolment (COE).

The Tribunal found that the applicant had indeed breached condition 8202(2)(a) by not being enrolled in a registered course between 14 June 2017 and 15 July 2018, and again from 8 May 2019. The Tribunal was not persuaded by the applicant's explanations for non-payment of fees, noting that financial documents indicated his father's business was performing better in 2017 than in the previous year, and that his mother's health issue, while concerning, was quickly resolved and did not demonstrably prevent his father from providing financial support. Furthermore, the Tribunal found that the applicant had not taken proactive steps to address his financial difficulties with his education provider or the Department. Considering the applicant's multiple course cancellations for unsatisfactory progress and non-payment of fees, his failure to complete any tertiary studies despite several years in Australia, and his overseas travel which suggested other priorities, the Tribunal concluded that the grounds for cancellation outweighed any mitigating factors.

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