Shrestha (Migration)

The Administrative Appeals Tribunal considered the case of Ms Shrestha, a holder of a Student (Temporary) (Class TU) visa, Subclass 573 (Higher Education Sector). The dispute arose from the cancellation of her visa on the grounds that she was not enrolled in a registered course, thereby breaching condition 8202 of the Migration Regulations 1994. The Tribunal was tasked with determining whether Ms Shrestha had indeed breached this condition and, if so, whether to exercise its discretion to cancel her visa.

The primary legal issue before the Tribunal was whether Ms Shrestha had complied with condition 8202 of her visa. This condition requires a student visa holder to be enrolled in a registered course and to achieve satisfactory course progress and attendance. The Tribunal noted that Ms Shrestha had acknowledged not being enrolled in a registered course since 15 November 2016, which constituted a breach of condition 8202(2). Consequently, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, having found a breach of a visa condition.

In considering the exercise of its discretion, the Tribunal had regard to matters raised by Ms Shrestha and government policy guidelines. Ms Shrestha's migration agent submitted that her non-compliance was due to extenuating circumstances, including the adverse impact of the Nepal earthquakes in 2015, the death of her father in February 2016, and subsequent financial hardship and emotional distress. Evidence was presented demonstrating her father's illness and death, her consultation with a psychologist, and her subsequent re-enrolment in a Master of Business Administration degree. The Tribunal weighed these factors against the fact of the non-compliance, concluding that the circumstances surrounding the breach, particularly the personal tragedies and their impact on her studies, warranted a decision not to cancel the visa.

The Tribunal set aside the decision to cancel Ms Shrestha's visa and substituted a decision not to cancel it. This outcome reflected the Tribunal's consideration of the extenuating circumstances presented by Ms Shrestha, which it found to be compelling reasons to exercise its discretion in her favour.