Tamang (Migration)

The Administrative Appeals Tribunal considered the case of Mr. Tamang, who sought review of the decision to cancel his Student (Temporary) (Class TU) visa, subclass 500. The cancellation was based on the applicant's failure to maintain enrolment in a registered course of study, which constituted a breach of condition 8202 of the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether Mr. Tamang had breached condition 8202 of his visa, specifically by failing to be enrolled in a full-time registered course. If a breach was established, the Tribunal then had to consider whether to exercise its discretion to affirm the cancellation of the visa, having regard to the circumstances of the case. Condition 8202 requires a student visa holder to be enrolled in a full-time registered course and to maintain satisfactory course progress and attendance.

The Tribunal found that Mr. Tamang had breached condition 8202(2)(a) as he had not been enrolled in a registered course since 18 June 2018, when his education provider cancelled his enrolment due to non-payment of fees. While Mr. Tamang provided reasons for his financial difficulties, including family hardship following an earthquake in his home country, the Tribunal was not satisfied that these circumstances were beyond his control, particularly given his prior history of studying multiple courses in Australia and the fundamental requirement for student visa holders to demonstrate sufficient funds for tuition and living costs. In exercising its discretion, the Tribunal weighed the applicant's desire to work in Australia and support his family against the substantial period of non-enrolment and the integral nature of maintaining enrolment to the purpose of a student visa.

Ultimately, the Tribunal affirmed the decision to cancel Mr. Tamang's visa, concluding that the breach of condition 8202 was established and that the cancellation was warranted in the circumstances.