Lamsal (Migration)

The Administrative Appeals Tribunal considered the case of Mr Lamsal, who sought review of a decision to cancel his Subclass 500 (Student) visa. The cancellation was based on the ground that Mr Lamsal had been convicted of an offence, as provided by section 116(1)(g) of the Migration Act 1958 (Cth).

The primary legal issue before the Tribunal was whether, having found that the ground for cancellation existed, it should exercise its discretion not to cancel Mr Lamsal's visa. In determining this, the Tribunal was required to consider various factors, including the purpose of Mr Lamsal's stay in Australia, compelling reasons for him to remain, the extent of his compliance with visa conditions, the hardship that cancellation would cause to him and his family, and the circumstances surrounding the offence. The Tribunal also had regard to the Department's Procedures Advice Manual 3 concerning general visa cancellation powers.

The Tribunal noted that Mr Lamsal had a significant dependence on alcohol, which had led to aggressive behaviour and physical assaults against his wife. The specific offence involved an assault with a broomstick while a young child was present. However, the Tribunal also considered that Mr Lamsal was listed as a dependent on his wife's student visa, and that his wife was undertaking studies in Australia. The Tribunal concluded that there were compelling reasons for Mr Lamsal to remain in Australia to support his wife in completing her studies, and that significant hardship would be caused to her if his visa were cancelled.

Ultimately, the Tribunal decided to set aside the decision to cancel Mr Lamsal's visa and substituted a decision not to cancel it.