Aryal (Migration)

This matter concerned an application for review of a decision by a delegate of the Minister for Immigration to refuse to grant Mr Samir Aryal, a Nepalese national, a Subclass 500 (Student) visa. Mr Aryal's previous student visa had been cancelled under s.116(1)(b) of the Migration Act 1958 for failing to comply with a visa condition. The delegate refused the current visa application because Mr Aryal did not satisfy Public Interest Criterion (PIC) 4013, which required either the application to be made more than three years after the visa cancellation or for compelling or compassionate circumstances to justify granting the visa within that three-year period.

The Administrative Appeals Tribunal was required to determine whether Mr Aryal satisfied PIC 4013. Specifically, the Tribunal had to consider whether Mr Aryal's current visa application was lodged more than three years after the cancellation of his previous visa, or, alternatively, whether there were compelling circumstances affecting the interests of Australia, or compassionate or compelling circumstances affecting the interests of an Australian citizen, permanent resident, or eligible New Zealand citizen, that justified granting the visa within the three-year period.

The Tribunal found that Mr Aryal was affected by the risk factor in PIC 4013(2)(b) due to the cancellation of his previous visa. It noted that the current application was made on 9 May 2018, which was less than three years after the cancellation on 23 May 2018, thus failing to satisfy PIC 4013(1)(a). The Tribunal also considered whether there were compelling or compassionate circumstances under PIC 4013(1)(b) but concluded that Mr Aryal had not demonstrated such circumstances.

Consequently, the Tribunal affirmed the delegate's decision to refuse the visa application.