SHRESTHA (Migration)

The Administrative Appeals Tribunal considered the case of Mr Shrestha, a holder of a Student (Temporary) (Class TU) Subclass 500 visa. The dispute arose from the cancellation of Mr Shrestha's visa, which was based on the allegation that he was not enrolled in a registered course, thereby breaching condition 8202 of the Migration Regulations 1994. The Tribunal, presided over by Member Helen Kroger, was tasked with determining whether this breach had occurred and, if so, whether the discretion to cancel the visa should be exercised.

The primary legal issue before the Tribunal was whether Mr Shrestha had complied with condition 8202 of the Migration Regulations 1994. This condition requires a student visa holder to be enrolled in a full-time registered course and to maintain satisfactory course progress and attendance, as certified by their education provider. The Tribunal needed to ascertain if Mr Shrestha's enrolment status and academic performance met these requirements, and if not, whether the cancellation of his visa was the appropriate course of action.

The Tribunal found that Mr Shrestha had not complied with condition 8202(2) as he was not enrolled in a registered course at the time his visa was cancelled, a fact he admitted. However, the Tribunal then considered its discretion to cancel the visa. It took into account Mr Shrestha's explanation for his academic difficulties, including family issues and subsequent efforts to re-enrol in courses and secure future study, supported by his father's financial assistance. The Tribunal also considered his intention to return to Nepal to work as a qualified accountant. Weighing these circumstances, the Tribunal concluded that the visa should not be cancelled.

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