SHRESTHA (Migration)

This matter concerned an appeal by an applicant whose Student (Temporary) (Class TU) visa, Subclass 573, was cancelled by the Department. The applicant had been granted the visa on 30 June 2015. The Department issued a Notification of Intention to Consider Cancellation (NOICC) on 13 October 2016, advising that information from the Provider Registration and International Student Management System (PRISMS) indicated the applicant had not been enrolled in a registered course since 25 July 2015, and therefore appeared to be in breach of condition 8202(2)(a) of the Migration Regulations 1994. The Tribunal was required to determine whether the applicant had breached condition 8202 and, if so, whether the visa cancellation should be affirmed.

The primary legal issue was whether the applicant had complied with condition 8202 of Schedule 8 to the Migration Regulations 1994. This condition requires a student visa holder to be enrolled in a registered course, and to achieve satisfactory course progress and attendance, unless specific exceptions apply. The Tribunal considered the applicant's submission that financial difficulties and family issues, including the impact of an earthquake in Nepal, had prevented him from continuing his studies. The Tribunal also had regard to the Department's Procedures Advice Manual regarding general visa cancellation powers.

The Tribunal found that, on the evidence before it, the applicant had not been enrolled in a registered course for almost 15 months prior to the NOICC, and therefore had not complied with condition 8202(2)(a). While acknowledging the applicant's stated intentions and the personal circumstances he raised, the Tribunal considered the prolonged period of non-enrolment to be significant. The Tribunal also noted that the applicant had since departed Australia. Despite accepting that the applicant and his family might face hardship if the visa was cancelled, and that he would be subject to limitations on applying for further visas in Australia, the Tribunal concluded that the circumstances warranted affirmation of the cancellation. The Tribunal affirmed the decision to cancel the applicant's visa.