NEUPANE (Migration)

The Administrative Appeals Tribunal (AAT) reviewed a decision to cancel the Student (Temporary) (Class TU) visa, Subclass 573, held by the applicant, Mr. Neupane. The cancellation was based on the applicant's alleged failure to comply with a condition of his visa, specifically condition 8516, which requires a visa holder to continue to satisfy the criteria for the grant of the visa.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was established, and if so, whether the discretion to cancel the visa should be exercised. The Tribunal was required to determine if Mr. Neupane had ceased to be a person who would satisfy the primary criteria for his visa, thereby breaching condition 8516. If this ground was established, the Tribunal then had to consider all relevant circumstances, including government policy, to decide whether to uphold the cancellation.

The Tribunal found that the ground for cancellation under s 116(1)(b) was established because Mr. Neupane had withdrawn from his higher education course and subsequently enrolled in a vocational course, which meant he no longer met the criteria for his Subclass 573 visa. However, the Tribunal then considered the exercise of discretion. It weighed factors including the applicant's initial purpose of study in Australia, his departure from Australia, his compliance with other visa conditions, the hardship caused by the cancellation, and the circumstances leading to the non-compliance. The Tribunal accepted that Mr. Neupane's academic difficulties and subsequent withdrawal were significantly impacted by the Nepal earthquake, his father's illness, and his own physical and mental health problems, supported by documentary and oral evidence.

The Tribunal set aside the decision to cancel Mr. Neupane's visa. It concluded that while the ground for cancellation existed, the compelling and compassionate circumstances presented by the applicant, particularly his health issues and the impact of the earthquake, warranted the exercise of discretion not to cancel the visa.