Silwal (Migration)

The Administrative Appeals Tribunal considered the case of Mr Silwal, who sought review of the decision to cancel his Student (Temporary) (Class TU) visa, subclass 573 Higher Education. The dispute arose from Mr Silwal's failure to maintain enrolment in a registered course and his non-payment of fees, which led to the cancellation of his visa under section 116(1) of the Migration Act 1958 (Cth).

The Tribunal was required to determine whether Mr Silwal had breached condition 8202 of the Migration Regulations 1994, specifically whether he had been enrolled in a registered course. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, taking into account all relevant circumstances.

The Tribunal found that Mr Silwal had not complied with condition 8202(2) as he was not enrolled in a registered course between August 2016 and March 2017, and had not held a Certificate of Enrolment in any course since July 2014. While acknowledging Mr Silwal's educational achievements and his stated desire to obtain permanent residency, the Tribunal noted the lack of evidence supporting his claims of family illness causing psychological distress and his failure to regularise his visa status or seek study rights for a significant period. The Tribunal concluded that Mr Silwal did not have a compelling need to remain in Australia, as the primary purpose of a student visa is to study, which he had not been doing.

Consequently, the Tribunal affirmed the decision to cancel Mr Silwal's visa.