Thapa (Migration)

This matter concerned the review of a decision to cancel the Student (Temporary) (Class TU) visa, subclass 500, held by the applicant, Mr Thapa. The applicant's visa was cancelled by the Department of Home Affairs on the basis that he had breached a condition of his visa. The Administrative Appeals Tribunal was required to determine whether the cancellation decision should be affirmed.

The primary legal issue before the Tribunal was whether the applicant had complied with condition 8202 of Schedule 8 to the Migration Regulations 1994. Specifically, the Tribunal had to consider whether the applicant had maintained enrolment in a registered course that, upon completion, would provide a qualification at the same or a higher Australian Qualifications Framework (AQF) level than the course for which his visa was originally granted, for the period from 9 August 2017 to 20 November 2019. If a breach of this condition was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa.

The Tribunal found that the applicant had not maintained enrolment in a course at the same or a higher AQF level than his original course during the specified period, thereby breaching condition 8202(2)(b) of his visa. The Tribunal noted that while the applicant had generally remained enrolled in courses and intended to study, his academic results and lack of application indicated he had not stayed in Australia for the genuine purpose of undertaking his studies. Considering the circumstances as a whole, including the applicant's conduct and academic performance, the Tribunal concluded that the visa should be cancelled.

The Tribunal affirmed the decision to cancel the applicant's visa.