Thapa (Migration)

The Administrative Appeals Tribunal (the Tribunal) considered the case of Thapa, involving the cancellation of a Student (Temporary) (Class TU) visa, subclass 500 (Student). The primary applicant, Mr Thapa, had enrolled in a course at a lower Australian Qualifications Framework (AQF) level than that specified in his visa conditions. This enrolment at the lower level was reportedly advised by an agent, with the intention of completing that course. However, the offer of enrolment at the original, higher level remained open. The cancellation of the visa was also influenced by a separate issue of non-payment of fees for the higher-level course. The Tribunal was asked to review the decision to cancel Mr Thapa's visa, taking into account the potential hardship that cancellation would cause, including the impact on his newborn baby and the second applicant's work and study intentions.

The central legal issue before the Tribunal was whether the delegate's decision to cancel Mr Thapa's visa was justified, particularly in light of the circumstances surrounding his enrolment and the potential hardship to the applicants. This required the Tribunal to consider the scope of the delegate's discretion to cancel a visa under the relevant provisions of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth), and whether that discretion had been exercised appropriately. The Tribunal also had to assess the weight to be given to the mitigating factors presented by the applicants, including the advice received from the agent, the intention to complete a course, and the significant personal circumstances of the family.

In its reasoning, the Tribunal acknowledged the delegate's obligation to consider all relevant factors when exercising the discretion to cancel a visa. It noted that while Mr Thapa had enrolled in a course at a lower AQF level, this did not automatically constitute a breach of his visa conditions if he intended to complete that course. The Tribunal also considered the impact of the non-payment of fees and the advice provided by the agent. Crucially, the Tribunal weighed the potential hardship to the applicants, including the presence of a newborn baby and the second applicant's employment and study aspirations, against the grounds for cancellation. The Tribunal ultimately found that the circumstances did not warrant the cancellation of the visa and affirmed the decision under review.