Shrestha (Migration)

The Administrative Appeals Tribunal considered the case of Mr. Shrestha, who sought review of the Minister's decision to cancel his Subclass 573 Higher Education Sector visa. The dispute arose because Mr. Shrestha had ceased enrolment in his registered Higher Education course and subsequently enrolled in a vocational course, leading to concerns about his compliance with visa conditions.

The Tribunal was required to determine whether the ground for cancellation under s 116(1)(b) of the Migration Act 1958 (Cth) existed, specifically whether Mr. Shrestha had failed to comply with condition 8516 of his visa. This condition mandates that a visa holder must continue to satisfy the primary or secondary criteria for the grant of their visa. The Tribunal also had to consider whether, if the ground for cancellation was established, it should exercise its discretion to cancel the visa, having regard to all relevant circumstances.

The Tribunal reasoned that while Mr. Shrestha had indeed ceased enrolment in his original Higher Education course, which could be seen as a breach of condition 8516, the circumstances surrounding this change were important. Mr. Shrestha provided evidence that he received misleading advice from a migration agent regarding his enrolment and visa status. The Tribunal noted that the purpose of his stay was to study, and he had remained in Australia for an extended period pursuing his education and this review. While acknowledging the breach, the Tribunal found that it was not a mandatory cancellation and, after considering the applicant's circumstances, including the misleading advice received and his continued intention to study, it concluded that the discretion to cancel the visa should not be exercised.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel Mr. Shrestha's Subclass 573 Higher Education Sector visa.