Tuladhar (Migration)

This matter concerned the review of a decision to cancel the applicant's Student (Temporary) (Class TU) visa, subclass 573 Higher Education Sector. The applicant's visa was cancelled on the basis that he had ceased enrolment in a registered higher education course, thereby breaching condition 8202 of the Migration Regulations 1994. The applicant contended that his failure to maintain enrolment was due to family illness, specifically his grandmother's depression and dementia, which caused him significant stress.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of his visa, and if so, whether the discretion to cancel the visa should be exercised. Condition 8202 requires a student visa holder to be enrolled in a registered course and to achieve satisfactory academic progress and attendance. The Tribunal was required to consider the applicant's explanation for his lack of enrolment and assess whether the circumstances were beyond his control, as well as weigh various factors relevant to the exercise of the cancellation discretion, including the purpose of the visa, the extent of compliance, potential hardship, and other relevant matters.

The Tribunal found that the applicant had not complied with condition 8202(2) as he was not enrolled in a registered course from April 2017 until at least January 2018, the date of the delegate's decision. While the Tribunal accepted that the applicant's grandmother was ill, it was unconvinced that this prevented the applicant from remaining enrolled. The applicant had been granted a deferral for one semester but did not apply for a further deferral, nor did he return to study at his original institution. Furthermore, he did not actively seek to re-enrol until after his visa was cancelled. The Tribunal also noted the lack of documentary evidence to support the claimed deferral and the applicant's failure to return to Nepal to visit his grandmother. Consequently, the Tribunal concluded that the reasons for his lack of enrolment were not beyond his control and that the discretion to cancel the visa should be exercised.

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