Tiwari (Migration)

This matter concerned an appeal by an applicant, who held a student visa, against the decision to cancel that visa. The dispute arose because the applicant was alleged to have breached condition 8202 of the Migration Regulations 1994 by failing to maintain enrolment in a registered course of study. The Tribunal was required to determine whether the applicant had indeed breached this condition and, if so, whether the discretion to cancel the visa should be exercised.

The legal issues before the Tribunal were twofold: first, whether the applicant had complied with condition 8202 of his student visa, which mandates enrolment in a full-time registered course and satisfactory course progress and attendance; and second, if a breach was found, whether the circumstances warranted the cancellation of his visa. The applicant’s visa was cancelled on the basis that he had not maintained enrolment in a registered course since 26 July 2018, following the cancellation of his enrolments in a Diploma of Information Technology Networking and a Bachelor of Information Technology.

The Tribunal found that the applicant had not maintained enrolment in a registered course from 26 July 2018, and therefore had breached condition 8202(2)(a) of his visa. In considering the exercise of discretion to cancel the visa, the Tribunal had regard to the applicant's submissions, which included personal circumstances such as family responsibilities in Nepal, financial hardship for his parents, and his own mental vulnerability. Despite these submissions, the Tribunal concluded that the circumstances as a whole did not outweigh the finding of a breach of the visa conditions. Consequently, the Tribunal affirmed the decision to cancel the applicant's visa.