Sapkota (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Student (Temporary) (Class TU) (Subclass 500) visa was cancelled by the Department of Home Affairs. The cancellation was based on the applicant's alleged breach of condition 8202 of the Migration Regulations 1994, specifically that they were not enrolled in a registered course at the same or a higher AQF level than the course for which the visa was granted, between 19 January 2019 and 7 November 2019.

The primary legal issue before the Tribunal was whether the applicant had complied with condition 8202(2)(b) of their visa. This condition requires a student visa holder to maintain enrolment in a registered course that, upon completion, will provide a qualification at the same or a higher level than the original course. The Tribunal also had to consider whether, even if a breach was found, the discretion to cancel the visa should be exercised.

The Tribunal found that the applicant had indeed not maintained enrolment in a course at the required AQF level during the specified period, thus breaching condition 8202(2)(b). However, in exercising its discretion, the Tribunal had regard to the applicant's continuous enrolment in courses since arriving in Australia, their attempts to enrol in higher-level qualifications, and their stated intention to work in Nepal with a bachelor's degree. The Tribunal also noted the applicant's health issues, including depression and anxiety, and the difficulties encountered in securing enrolment in suitable courses.

Ultimately, the Tribunal concluded that the circumstances of the case warranted setting aside the cancellation decision. The Tribunal substituted a decision not to cancel the applicant's Subclass 500 visa.