Shrestha (Migration)

The Administrative Appeals Tribunal (AAT) considered the cancellation of the applicant's Subclass 573 Higher Education Sector visa. The dispute centred on whether the applicant had breached condition 8202 of the Migration Regulations 1994, which requires a student visa holder to be enrolled in a registered course and maintain satisfactory course progress and attendance. The applicant contended that personal circumstances, including domestic violence, family bereavements, and health issues, had impacted her ability to study.

The primary legal issue before the Tribunal was to determine if the applicant had complied with condition 8202 of her student visa. This condition mandates enrolment in a registered course and satisfactory academic 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 applicant's stated reasons for non-compliance and the purpose of a student visa.

The Tribunal found that the applicant had not been enrolled in a registered course for a significant period, thereby breaching condition 8202(2). While acknowledging the applicant's submissions regarding domestic violence, family loss, and other personal difficulties, the Tribunal noted the absence of evidence that the applicant had sought a deferral from her education provider or contacted the Department of Home Affairs during her period of non-compliance. The Tribunal concluded that the breach was significant and that the applicant had not fulfilled the purpose of her visa, which is to study in Australia.

Consequently, the Tribunal affirmed the decision to cancel the applicant's visa. The Tribunal also noted that it had no jurisdiction concerning any other applicants.