Uprety (Migration)

This matter concerned the review of a decision to cancel the applicant's Subclass 500 (Student) visa. The applicant, a citizen of Nepal, had arrived in Australia in 2016 on a student visa and had subsequently completed some IT qualifications. He was granted a further student visa in January 2020 to study commercial cookery and hospitality, but his enrolment was cancelled for non-payment of fees in February 2020. The visa was subsequently cancelled by the delegate on the basis that the applicant had failed to maintain enrolment in a registered course, thereby breaching condition 8202 of the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the applicant had complied with condition 8202 of his visa. Specifically, the Tribunal had to determine if the applicant had been enrolled in a registered course of study from the date of his enrolment cancellation until the date of the delegate's decision. If a breach of condition 8202 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 disputed that he was not enrolled in a registered course of study from 17 February 2020 to 15 November 2022. The applicant provided reasons for this lack of enrolment, including difficulties with his previous IT studies, mental health issues, travel to Brisbane due to family advice, the impact of COVID-19, and difficulties in obtaining a release letter from his previous education provider, which prevented him from enrolling in new courses. Despite these explanations, the Tribunal was satisfied that the applicant had failed to comply with condition 8202(2) of his visa.

Having established that the grounds for cancellation existed under s.116(2)(b) of the Migration Act 1958, the Tribunal then considered the discretion to cancel the visa. While acknowledging the applicant's circumstances, including his desire to obtain an Australian degree, the Tribunal concluded that, on consideration of all matters, the visa should be cancelled. Accordingly, the Tribunal affirmed the decision to cancel the applicant's Class TU visa.