Gautam (Migration)

This matter concerned the review of a decision to cancel the Student (Temporary) (Class TU) (Subclass 500) visa held by the applicant, a 26-year-old woman from Nepal. The visa was granted on the basis that she was a member of Dipak Pyakurel’s family unit. The Department had been notified that the applicant's relationship with Mr. Pyakurel had ended, and it was confirmed that they had ceased to be in an ongoing relationship, no longer had a mutual commitment to a shared life, and were living separately on a permanent basis. The applicant's visa was cancelled on the grounds that she was no longer a member of Mr. Pyakurel's family unit and was not enrolled in a full-time registered course, thereby breaching condition 8202 of the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of her visa, and if so, whether the discretion to cancel her visa should be exercised. The Tribunal was required to consider the circumstances of the case, including the applicant's submissions regarding her intended studies, financial difficulties, and the impact of an Apprehended Violence Order (AVO) placed on her by her husband, which prevented them from interacting. The Tribunal also had regard to the Department's Procedural Advice Manual concerning general visa cancellation powers.

The Tribunal reasoned that the applicant had indeed failed to comply with condition 8202 as she was no longer a member of a family unit and had not maintained enrolment in a registered course. The Tribunal found that the AVO conditions made it impossible for the applicant and her husband to act as a couple or resume their relationship, confirming that they lived separately and their relationship was no longer genuine and continuing. Consequently, the purpose of the applicant's travel and stay in Australia, which was predicated on being part of a family unit, no longer existed, and there were no compelling reasons for her to remain in Australia. The Tribunal gave little weight to the applicant's personal circumstances in favour of exercising discretion not to cancel the visa.

The Tribunal affirmed the decision to cancel the applicant's subclass 500 (Student TU) visa.