Shrestha (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 573 Higher Education Sector visa of the applicant, Mr. Shrestha. The cancellation was based on the applicant's alleged failure to comply with condition 8202 of the Migration Regulations 1994, specifically by not being enrolled in a registered course. The applicant contended that extenuating circumstances, including family illness and personal health issues, led to his non-enrolment.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of his visa, which requires the holder to be enrolled in a registered course and to achieve satisfactory course progress and attendance. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, taking into account the specific circumstances of the case. The Tribunal noted that the applicant's enrolment in a Graduate Diploma of Business course had been cancelled by his education provider due to non-commencement.

The Tribunal found that the applicant had indeed not complied with condition 8202(2) as he was not enrolled in a registered course at the time of the cancellation decision. However, in exercising its discretion regarding cancellation, the Tribunal gave significant weight to the applicant's evidence regarding his father's serious heart condition in Nepal, which caused him distress and affected his ability to study. While the applicant also cited personal health issues, the Tribunal gave less weight to this due to a lack of documentary evidence. Considering the totality of the circumstances, including the applicant's long history of study in Australia and the compelling reason of family illness, the Tribunal concluded that the visa should not be cancelled.

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