SHRESTHA (Migration)

This matter concerned an appeal by the applicant, Mr. Shrestha, against the cancellation of his Student (Temporary) (Class TU) visa, subclass 500. The primary dispute revolved around whether Mr. Shrestha had breached condition 8202 of the Migration Regulations 1994, which mandates enrolment in a registered course of study. The Administrative Appeals Tribunal (AAT) was tasked with determining if the cancellation decision was justified.

The legal issues before the Tribunal were twofold: firstly, whether the applicant had failed to comply with condition 8202 of his visa, specifically by not being enrolled in a registered course; and secondly, if a breach was established, whether the Tribunal should exercise its discretion to cancel the visa. The applicant’s visa was cancelled on the grounds that he was not enrolled in a registered course of study from 27 February 2017.

The Tribunal found that the applicant had indeed breached condition 8202(2)(a) as he was not enrolled in a registered course between 27 February 2017 and the date of the delegate's decision. However, the Tribunal noted that the applicant's bridging visa contained a condition prohibiting study, which explained his continued non-enrolment after the initial breach. Despite this, the Tribunal considered the overall circumstances, including the significant period of non-compliance and the applicant's financial situation and non-payment of fees, and concluded that there were no exceptional circumstances to warrant setting aside the cancellation.

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