Shrestha (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Subclass 500 (Student) visa held by the applicant. The Minister had the power to cancel the visa under section 116(1)(a) of the Migration Act 1958 (Cth) if a fact or circumstance upon which the visa was granted was no longer the case. The applicant's visa had been granted on the basis that he was a member of the family unit of the primary visa holder, his wife, and that their relationship was genuine and continuing.

The Tribunal was required to determine whether the ground for cancellation existed and, if so, whether the discretion to cancel the visa should be exercised. The applicant confirmed that he was divorced and therefore no longer a member of his former wife's family unit, satisfying the ground for cancellation under section 116(1)(a). However, this ground did not mandate cancellation under section 116(3), allowing the Tribunal to consider the exercise of discretion.

In considering the discretion, the Tribunal had regard to the applicant's original intention to travel to Australia as a dependant, his stated desire to study in his own right as a chef and in hospitality management, and his intention to return to Nepal to work in the tourism and hospitality industry. While accepting the applicant's desire to study, the Tribunal was not satisfied he had demonstrated a compelling need to remain in Australia. However, the Tribunal noted there was no evidence of non-compliance with other visa conditions, which weighed in his favour. Crucially, the Tribunal considered the significant financial and emotional hardship the applicant would face if his visa were cancelled, given his investment in his former wife's education, his current enrolment in studies, and his stated difficulties in finding work in Nepal without an Australian qualification.

The Tribunal concluded that, on balance, the visa should not be cancelled. The decision under review was set aside, and a decision was substituted to not cancel the applicant's Subclass 500 (Student) visa.