Shakya (Migration)

The applicant, Mr Shakya, sought judicial review of a decision by the Administrative Appeals Tribunal (Cth) which affirmed the delegate's decision to cancel his Student (Temporary) (Class TU) visa, subclass 500. The cancellation was based on the applicant's failure to attend a hearing before the Tribunal and the delegate's finding that the applicant was not a genuine student. The delegate also found that the applicant had breached visa condition 8202 by failing to maintain enrolment in a full-time registered course, having downgraded his enrolment.

The primary legal issue before the Federal Circuit and Family Court of Australia was whether the Tribunal had erred in law in affirming the delegate's decision to cancel the applicant's visa. Specifically, the court was required to consider whether the Tribunal had adequately addressed the applicant's submissions regarding his failure to attend the hearing and whether its findings concerning the breach of condition 8202 were supported by the evidence.

The court found that the Tribunal had not erred in law. It reasoned that the applicant had been provided with adequate notice of the hearing and had failed to provide a satisfactory explanation for his non-attendance. Furthermore, the Tribunal was entitled to find that the applicant had breached condition 8202, as the evidence demonstrated a failure to maintain enrolment in a full-time registered course. The court affirmed the principles that a failure to attend a hearing without a reasonable excuse can lead to adverse findings, and that the onus is on the visa holder to demonstrate compliance with visa conditions.

The application for judicial review was dismissed.