Pandey (Migration)

This matter concerned an appeal by Ms. Pandey against the cancellation of her Bridging A (Class WA) visa, Subclass 010. The visa had been granted in association with an application for a further student visa. The grounds for cancellation related to the risk to the health, safety, or good order of the community, stemming from criminal convictions for common assault, for which Ms. Pandey had received a conditional release order, an intensive corrections order, and community service. The Administrative Appeals Tribunal (AAT) was required to determine whether to affirm the decision to cancel the visa, considering the discretion afforded to it under migration law.

The Tribunal was tasked with determining whether the grounds for cancellation under s. 116(1)(g) and r. 2.43(1)(oa) of the Migration Regulations 1994 were met, and if so, whether to exercise its discretion to cancel the visa. The applicant had not responded to an invitation to comment and had lost her entitlement to a hearing. The Tribunal considered the applicant's stated intention to study further in Australia, her pending student visa application, and her intention to apply for another substantive visa if the student visa was not granted. It also considered the potential hardship Ms. Pandey might face upon return to Nepal, as evidenced by country reports, and noted that her divorce meant hardship to an ex-husband was no longer relevant.

In its reasoning, the Tribunal acknowledged that Ms. Pandey held a temporary Bridging A visa and had been convicted of offences, thus establishing grounds for cancellation. In exercising its discretion, the Tribunal had regard to the applicant's circumstances, including her aspirations for further education and her pending visa applications. However, the Tribunal found that while the student visa application was in progress, the Bridging A visa was not intended to allow her to remain in Australia indefinitely or to avoid difficulties in her home country. The Tribunal concluded that Ms. Pandey did not have a compelling need to remain in Australia and that the Bridging A visa was not the appropriate mechanism for her to do so.

Consequently, the Tribunal affirmed the decision to cancel Ms. Pandey's Subclass 010 (Bridging A) visa.