Dahal (Migration)

The Administrative Appeals Tribunal considered the decision to cancel the Subclass 573 Higher Education Sector visa granted to the applicant, Mr. Dahal. The dispute arose from the applicant's failure to maintain enrolment and satisfactory progress in his course of study, leading to concerns that he was not a genuine student.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(fa)(i) of the Migration Act 1958 (Cth) was made out, specifically whether the applicant was not, or was likely not to be, a genuine student. If this ground was established, the Tribunal then had to consider whether to exercise its discretion to affirm the cancellation of the visa, taking into account all relevant circumstances.

The Tribunal reasoned that the applicant's inconsistent statements regarding his study plans and the cancellation of his enrolment due to failure to re-enrol and pay fees indicated a lack of genuine student conduct. While acknowledging the applicant's stated intention to study and a period of study, the Tribunal found that his failure to contact his education provider about difficulties with his medical condition and subsequent non-compliance with visa conditions over a substantial period weighed heavily against him. The Tribunal noted that the applicant's return to Nepal for marriage and medical treatment, without making appropriate arrangements with his provider and the Department, did not excuse his non-compliance.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's visa, concluding that the ground for cancellation was established and that the exercise of discretion to cancel the visa was warranted given the circumstances.