Shrestha (Migration)

The Administrative Appeals Tribunal considered the case of Ms Shrestha, who sought review of the cancellation of her Student (Temporary) (Class TU) visa, subclass 500. The Department of Home Affairs had initiated cancellation proceedings on the grounds that Ms Shrestha had breached condition 8202 of her visa by ceasing to be enrolled in a registered course. Ms Shrestha contended that her non-compliance was due to circumstances beyond her control, specifically suffering from long COVID.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) existed, and if so, whether the Tribunal should exercise its discretion to cancel the visa. This required determining if Ms Shrestha had failed to comply with a condition of her visa, specifically condition 8202(2)(a) which mandates enrolment in a full-time registered course, and whether any such non-compliance occurred in circumstances beyond her control.

The Tribunal found that Ms Shrestha had indeed failed to comply with condition 8202(2)(a) as she had ceased to be enrolled in a registered course from April 2022. While acknowledging Ms Shrestha's submissions regarding her long COVID diagnosis and its impact on her ability to study, the Tribunal concluded that these circumstances did not constitute a situation beyond her control that would excuse the breach. The Tribunal noted that the medical evidence provided primarily related to periods of illness and carer's leave, and did not definitively establish that her inability to maintain enrolment was solely attributable to circumstances beyond her control for the entire period of non-compliance. After considering all the circumstances, including the applicant's submissions and departmental guidance, the Tribunal determined that the visa should be cancelled.

Consequently, the Tribunal affirmed the decision of the Department of Home Affairs to cancel Ms Shrestha's Class TU visa.