Thapamagar (Migration)

This matter concerned an appeal by a student visa holder against the cancellation of his Student (Temporary) (Class TU) visa, subclass 500. The applicant, a citizen of Nepal, had enrolled in a Bachelor of Information Systems at Holmes Institute. His enrolment was cancelled on 3 November 2017 due to non-payment of fees, and he had not enrolled in any other registered course of study since that date. The applicant argued that financial difficulties, stemming from family illness and the impact of an earthquake in his home town, prevented him from paying his fees. He also presented evidence of improved family financial circumstances and a desire to complete his studies.

The primary legal issue before the Tribunal was whether the applicant had breached a condition of his visa by failing to be enrolled in a registered course of study for a continuous period of approximately eight months, from 3 November 2017. The Tribunal was also required to consider whether, having found a breach, it should exercise its discretion to cancel the visa, taking into account all relevant circumstances.

The Tribunal found that the applicant had indeed breached visa condition 8202(2) by not being enrolled in a registered course of study for the specified period. In considering the exercise of its discretion to cancel the visa, the Tribunal had regard to the applicant's evidence, including his stated reasons for non-compliance, his continued employment, and his expressed intention to complete his studies. However, the Tribunal also noted that the applicant had twice had his Confirmation of Enrolment cancelled due to non-payment of fees. Despite acknowledging the applicant's personal circumstances and his desire to complete his qualification, the Tribunal was not satisfied that these circumstances warranted setting aside the cancellation decision. The Tribunal affirmed the decision to cancel the applicant's visa.