Shrestha (Migration)

The Administrative Appeals Tribunal reviewed a decision by a delegate of the Minister to cancel the Subclass 500 (Student) visa of a citizen of Nepal. The applicant had been granted the visa to study a Diploma of Commerce and a Bachelor of Commerce. The visa was cancelled on the grounds that the applicant had ceased to be enrolled in a full-time registered course, in breach of condition 8202 of the Migration Regulations 1994.

The Tribunal was required to determine whether the applicant had breached condition 8202 of his visa and, if so, whether the discretion to cancel the visa should be exercised. Condition 8202 requires a student visa holder to be enrolled in a full-time registered course and to maintain satisfactory course progress and attendance.

The Tribunal found that the applicant had not been enrolled in a full-time registered course between 26 July 2018 and 5 August 2019, thus breaching condition 8202(2)(a). However, in considering the exercise of discretion to cancel the visa, the Tribunal took into account the applicant's stated purpose for coming to Australia, which was to study and return to Nepal to assist in family businesses, and the significant fees he had paid. Crucially, the Tribunal accepted evidence that the breach arose due to the serious illness of the applicant's grandmother in Nepal, which necessitated his return home. While acknowledging the substantial length of the breach, the Tribunal found that the circumstances giving rise to the non-compliance, including attempts to re-enrol and events in Nepal beyond the applicant's control, weighed in favour of not cancelling the visa.

Consequently, the Tribunal set aside the delegate's decision to cancel the applicant's visa and substituted a decision not to cancel it.