Rajbhandari (Migration)

The Administrative Appeals Tribunal considered the case of Mr. Rajbhandari, who held a Student (Temporary) (Class TU) Subclass 500 visa. The dispute arose when the applicant's visa was cancelled because he had ceased enrolment in a registered course of study. The applicant contended that compelling reasons, including his own diagnosed health condition and family medical issues, led to his period of non-enrolment, and that he subsequently took steps to re-enrol and continue his studies.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202(2)(a) of the Migration Regulations 1994, which requires a student visa holder to be enrolled in a full-time registered course. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa under section 116(1) of the Migration Act 1958. The Tribunal was required to assess the applicant's explanation for the period of non-enrolment and determine if these circumstances warranted setting aside the cancellation decision.

The Tribunal found that the applicant had indeed not maintained enrolment in a registered course between 19 December 2018 and 26 February 2020, thus breaching condition 8202(2)(a). However, in exercising its discretion regarding cancellation, the Tribunal gave significant weight to the applicant's compelling reasons for the non-compliance, including his recovery from a mental health condition requiring six months of treatment and family medical issues. The Tribunal noted that shortly after his recovery, the applicant took steps to re-enrol in the same degree, demonstrating his commitment to study, which was the original purpose of his visa. The Tribunal also considered that there was no evidence of non-compliance with other visa conditions and that the applicant's non-compliance was attributable to reasons reasonably outside his control.

Consequently, the Tribunal set aside the decision to cancel Mr. Rajbhandari's Subclass 500 (Student) visa and substituted a decision not to cancel the visa.