KOIRALA (Migration)

This matter concerned an appeal by the applicant, Koirala, against the cancellation of his Student (Temporary) (Class TU) visa, Subclass 573 (Higher Education Sector). The dispute arose from the Minister's decision to cancel the visa, which the applicant sought to have reviewed by the Tribunal. The Tribunal, presided over by Mr S Norman, was tasked with determining whether the cancellation decision should be affirmed.

The primary legal issues before the Tribunal were whether the grounds for cancellation under section 116(1)(g) of the Migration Act 1958 (Cth) were established, and if so, whether the discretion to cancel the visa should be exercised. Specifically, the Tribunal had to consider if the applicant had been convicted of an offence against a law of a State, as prescribed by regulation 2.43(1)(oa) of the Migration Regulations 1994, and whether the applicant's academic progress and intentions constituted a failure to be a genuine student, thereby justifying cancellation.

The Tribunal reasoned that the ground for cancellation under section 116(1)(g) was made out, as the applicant had been convicted of an offence against a State law. While this ground did not mandate cancellation, the Tribunal then considered its discretion. It found that the applicant had not made satisfactory academic progress, having failed to commence or complete courses, and had spent significant periods not enrolled in registered studies. The Tribunal was not satisfied that the applicant's present intention was to study in Australia, despite his stated desire to continue his education. The Tribunal also noted the applicant's failure to comply with visa conditions regarding study progress and enrolment, and his criminal conviction. Balancing these factors against the potential hardship to the applicant, the Tribunal concluded that the circumstances as a whole warranted the cancellation of the visa.

Consequently, the Tribunal affirmed the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.