SHRESTHA (Migration)

The Administrative Appeals Tribunal considered the case of Mr Shrestha concerning the cancellation of his Student (Temporary) (Class TU) visa, specifically a 573 Higher Education Sector visa. The dispute arose from the Minister's decision to cancel Mr Shrestha's visa, which he sought to have reviewed by the Tribunal.

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 established. This section permits the Minister to cancel a visa if the holder does not comply with a condition of their visa. Specifically, the Tribunal had to determine if Mr Shrestha had breached condition 8516, which requires the visa holder to continue to satisfy the criteria for the grant of the visa.

The Tribunal reasoned that Mr Shrestha had breached condition 8516 because he had withdrawn from his Higher Education Sector course and enrolled in a Vocational Education and Training Sector course. This meant he was no longer an eligible higher degree student and therefore did not meet the criteria for his Subclass 573 visa. While acknowledging the applicant's personal circumstances, including depression and anxiety, and his family's financial and emotional investment, the Tribunal concluded that these factors did not outweigh the breach of the visa condition. The Tribunal applied the principle that visa holders must ensure they continue to meet the criteria for their visa, even when changing courses.

The Tribunal affirmed the decision to cancel Mr Shrestha's Subclass 573 Higher Education Sector visa.