Lamichhane Poudel (Migration)

This matter concerned an appeal by the applicant, Lamichhane Poudel, against the cancellation of her Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate). The applicant had been granted the visa as a secondary applicant, with the purpose of remaining in Australia with her partner, who was the primary visa holder. However, the relationship between the applicant and the primary visa holder had ceased. The applicant sought to remain in Australia to complete her nursing studies, which she had commenced after her partner had relocated.

The primary legal issue before the Tribunal was whether, in light of the cessation of the applicant's relationship with the primary visa holder, the applicant's Subclass 485 visa should be cancelled. This involved considering the discretionary power to cancel the visa, even though the ground for cancellation did not mandate it under section 116(3) of the Migration Act 1958 (Cth). The Tribunal was required to weigh various factors, including the purpose of the visa, the applicant's compliance with visa conditions, and the potential hardship that cancellation might cause.

The Tribunal reasoned that the applicant's Subclass 485 visa was intended to facilitate her stay in Australia with her partner, a purpose that was no longer being fulfilled due to the relationship breakdown. While acknowledging the applicant's enrolment in a nursing course and the financial and emotional hardship she would face if unable to complete it, the Tribunal noted that a Subclass 485 visa is not designed for long-term study. The Tribunal considered that a Student visa would be a more appropriate pathway for the applicant to pursue her educational goals in Australia. Ultimately, the Tribunal concluded that the significance of the applicant no longer meeting the fundamental purpose of her visa outweighed other considerations, leading to the affirmation of the cancellation decision.