Aryal Bhatta (Migration)

This matter concerned an application by Aryal Bhatta for review of a decision to cancel her Regional Sponsored Migration Scheme (RSMS) visa (Subclass 187). The dispute arose because Ms. Bhatta did not commence employment in the nominated position of Retail Buyer within the required timeframe after her visa was granted. The decision to cancel her visa was made by the delegate, and this decision was subsequently reviewed by the Tribunal.

The primary legal issue before the Tribunal was whether the cancellation of Ms. Bhatta's visa was justified, particularly in light of her circumstances and the best interests of her children. Specifically, the Tribunal had to consider whether the ground for cancellation under s 137Q of the *Migration Act 1958* (Cth) was enlivened, and if so, whether there were any overriding considerations, such as the best interests of her children, that warranted setting aside the cancellation decision. The Tribunal also considered the applicant's explanation for not commencing the nominated employment and her understanding of the visa conditions.

The Tribunal reasoned that while the ground for cancellation was enlivened because Ms. Bhatta did not commence the nominated employment, it was crucial to consider the best interests of her children. The applicant had two young sons residing in Australia, one of whom was an Australian citizen and the other had lived in Australia his entire life. The Tribunal gave significant weight to the fact that one child was an Australian citizen and that both children had strong ties to the Australian community, including their education. The Tribunal found that the continuous presence of their parents in Australia was crucial for their well-being and that preventing the parents from living in Australia would have detrimental effects on the children.

Consequently, the Tribunal determined that the best interests of the applicant's children were a primary consideration and weighed heavily against the cancellation of the visa. The Tribunal set aside the delegate's decision to cancel Ms. Bhatta's visa.