Thapa (Migration)

This matter concerned an appeal by the applicant, Mr Thapa, against the cancellation of his Student (Temporary) (Class TU) visa, subclass 573 (Higher Education Sector). The delegate of the Department of Immigration and Border Protection had cancelled the applicant's visa under s 116(1)(b) of the Migration Act 1958 (Cth) on the ground that he had failed to comply with condition 8202, which requires a student visa holder to be enrolled in a registered course of study. The Administrative Appeals Tribunal was required to review this decision.

The primary legal issues before the Tribunal were whether the applicant had breached condition 8202 of his visa by failing to maintain enrolment in a registered course of study, and if so, whether the discretion to cancel his visa under s 116(1)(b) of the Act had been exercised correctly. The applicant contended that his non-enrolment was due to his previous education provider, UTS, preventing him from being released from a Foundation Studies course, thereby hindering his ability to enrol in alternative studies.

The Tribunal found that the applicant had indeed breached condition 8202, as he conceded he was not enrolled in a registered course of study for a period of approximately two years and four months. The Tribunal rejected the applicant's explanation for this non-enrolment, noting that a release from UTS was unnecessary given his enrolment in the Foundation Studies course had already been cancelled. Furthermore, the applicant had not raised this explanation in earlier correspondence with the Department or the Tribunal, and it lacked sufficient detail and corroborating evidence. Consequently, the Tribunal affirmed the delegate's decision that the applicant had failed to comply with condition 8202. In considering the exercise of discretion under s 116(1)(b), the Tribunal noted that the delegate had taken into account relevant factors, including the purpose of the applicant's stay, the extent of his non-compliance, potential hardship, and his conduct. The Tribunal concluded that the grounds for cancellation outweighed the reasons for not cancelling the visa.