Poudel (Migration)

The applicant, a holder of a Student (Temporary) (Class TU) visa, subclass 573, sought review of the delegate's decision to cancel his visa. 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 conceded that he had not been enrolled in a registered course since 7 April 2017, thereby breaching condition 8202(2)(a).

The primary legal issue before the Tribunal was whether the applicant's visa should be cancelled, notwithstanding the finding of a breach of a visa condition. This required the Tribunal to consider the discretion afforded to it under section 116(1) of the Act. The Tribunal was required to assess whether the applicant had fulfilled the purpose for which his visa was granted and whether there were any compelling reasons for him to remain in Australia, weighing these factors against the breach of his visa conditions.

The Tribunal found that the applicant had not complied with condition 8202(2)(a) as he had not been enrolled in a registered course since 7 April 2017. While acknowledging the applicant's stated desire to complete his Master of Applied Finance degree and his explanation of life stressors, including his mother's health issues, the Tribunal was not satisfied that these circumstances constituted a compelling need to remain in Australia. The Tribunal noted that the applicant had not studied for a substantial period and had not provided a satisfactory explanation for this prolonged non-compliance. Consequently, the Tribunal concluded that the grounds for cancelling the visa outweighed the grounds for not cancelling it.

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