PUDASAINI (Migration)

This matter concerned an appeal by a visa holder against the cancellation of his Student (Temporary) (Class TU) visa, Subclass 573 Higher Education Sector. The applicant had not completed any higher education sector course, had poor attendance, and claimed to have experienced unfavourable treatment by his college due to a dispute between its owners. He also cited gambling and a lack of academic progress as reasons for his situation. The decision was made by Melissa McAdam.

The legal issues before the Tribunal were whether the applicant had genuinely engaged in higher education studies in Australia and whether the discretion to cancel his visa should be exercised. The Tribunal was required to consider the applicant's purpose for travel, his compliance with visa conditions, the circumstances leading to the grounds for cancellation, and the potential hardship to the visa holder.

The Tribunal found that while the applicant initially travelled to Australia with the purpose of studying higher education, he had not substantially engaged in active study or completed any higher education course. His attendance was poor, and his enrolment was not maintained over a significant period. While the Tribunal acknowledged the applicant's claims of being influenced by others, gambling, and distress caused by the 2015 Nepal earthquake, it considered these factors to be largely within his control or not sufficient justification for his prolonged lack of genuine student activity. The Tribunal gave limited weight to the earthquake as an extenuating circumstance.

Ultimately, the Tribunal concluded that the weight of the considerations supported the cancellation of the applicant's visa. It affirmed the decision to cancel the Subclass 573 Higher Education Sector visa.