Adhikari (Migration)

The Administrative Appeals Tribunal (the Tribunal) reviewed a decision by the Minister for Immigration and Border Protection to cancel Mr. Adhikari's Higher Education Sector (Class TU) visa, Subclass 573 (Student) (Temporary). Mr. Adhikari's visa was cancelled due to his failure to maintain enrolment in a registered course, a condition of his visa. He contended that his non-enrolment was due to circumstances beyond his control, specifically experiencing depression following ill-health and the death of his grandmother in his home country.

The Tribunal was required to determine whether the Minister's discretion to cancel Mr. Adhikari's visa had been exercised correctly. This involved considering the factors for and against cancellation, particularly whether the circumstances relied upon by Mr. Adhikari constituted a valid reason for his non-compliance with visa conditions and whether these circumstances were genuinely beyond his control. The Tribunal also had to assess the potential hardship to Mr. Adhikari and his parents if the cancellation were upheld.

In its reasoning, the Tribunal acknowledged Mr. Adhikari's stated difficulties but noted the absence of supporting medical evidence or evidence that he had sought a deferment from his education provider. Despite this, the Tribunal found that the circumstances, including his mental health struggles and the death of his grandmother, were significant and could have impacted his ability to comply with his visa obligations. The Tribunal concluded that the decision to cancel the visa was not a proper exercise of discretion, taking into account the potential hardship to Mr. Adhikari and his parents. The Tribunal set aside the decision under review.