Poudyal (Migration)

The Administrative Appeals Tribunal considered the case of Poudyal, an applicant for a Subclass 500 (Student) visa. The dispute concerned the cancellation of the applicant's visa by the Department of Home Affairs. The applicant had obtained a deferment of their studies due to family issues and academic concerns, and had subsequently enrolled in a different course, holding a valid Confirmation of Enrolment (COE) for that new course.

The primary legal issue before the Tribunal was whether the applicant had failed to comply with a condition of their visa, specifically the condition requiring enrolment in a registered course. This question was central to determining the validity of the cancellation decision made under section 116(1)(b) of the Migration Act 1958 (Cth).

The Tribunal reasoned that the applicant had not failed to comply with the visa condition. The existence of a valid COE for a new course, coupled with the deferment obtained, indicated that the applicant remained enrolled in a registered course of study. Consequently, the ground for cancellation under section 116(1)(b) did not arise.

Accordingly, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant’s Subclass 500 (Student) visa.