PANT (Migration)

This matter concerned an appeal by a citizen of Nepal against the cancellation of her Subclass 573 Student (Temporary) visa. The applicant, aged 23, arrived in Australia in 2016 and initially enrolled in Foundation Studies at the University of Technology Sydney as a pathway to a Bachelor of Nursing. She was unable to pass these studies and subsequently experienced difficulties with her education providers, including the voluntary administration of one institution. At the time of receiving the notice of intention to cancel her visa, she was enrolled in a Diploma of Childhood Education.

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 made out, and if so, whether the discretion to cancel the visa should be exercised. Section 116(1)(b) permits cancellation if the Minister is satisfied that the visa holder has not complied with a condition of their visa. In this case, the relevant condition was 8516, which requires the applicant to continue to satisfy the criteria for the grant of the visa, including maintaining enrolment in a registered course.

The Tribunal found that the applicant had not complied with condition 8516 as she was unable to progress in her intended higher education course and had experienced disruptions to her subsequent enrolments. However, the Tribunal then considered whether to exercise its discretion to cancel the visa. It noted that cancellation was not mandatory under section 116(3). In exercising this discretion, the Tribunal had regard to the applicant's original intention to study in Australia, her ambition to obtain overseas qualifications, and the significant financial and emotional hardship she and her family would suffer if she were unable to complete her studies. The Tribunal also considered that the difficulties in her marriage, which arose shortly after her husband's arrival, may have contributed to her inability to cope with higher education at the relevant time.

Ultimately, the Tribunal concluded that, considering all the circumstances, the visa should not be cancelled. The decision to cancel the applicant's Subclass 573 visa was set aside, and a substitute decision was made not to cancel the visa.