Sherchan (Migration)

The Administrative Appeals Tribunal considered the case of Sherchan, an applicant for a Student (Temporary) (Class TU) visa, subclass 500. The dispute concerned the cancellation of the applicant's visa by the Department of Home Affairs. The applicant, a Nepalese national, had been in Australia since 2014 with the initial purpose of completing a Bachelor of Nursing.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of the Migration Regulations 1994, which requires a student visa holder to be enrolled in a full-time registered course and maintain satisfactory course progress and attendance. Specifically, the Tribunal had to determine if the applicant's enrolment history and academic performance constituted a failure to comply with this condition, thereby rendering her visa liable for cancellation under section 116(1) of the Migration Act 1958.

The Tribunal found that the applicant had not complied with condition 8202(2)(a) of her visa, as she was not enrolled in a full-time registered course for a significant period between August 2018 and January 2020. Despite acknowledging the applicant's personal circumstances, including study difficulties, mental health challenges, and family pressures, the Tribunal concluded that her interrupted and incomplete studies, coupled with a prolonged period of non-enrolment, indicated a failure to genuinely pursue her studies. The Tribunal also considered that the applicant's original purpose of study had been superseded by other life events, including her marriage and the refusal of her husband's spousal visa application, suggesting her primary purpose for remaining in Australia was no longer solely to study.

Consequently, the Tribunal affirmed the decision to cancel the applicant's visa.