Thapa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

The applicant, Mr. Thapa, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) which affirmed the cancellation of his visa. The dispute centred on whether Mr. Thapa had breached his visa conditions, specifically concerning his enrolment in a registered course at the required Australian Qualifications Framework (AQF) level and maintaining satisfactory academic progress. The Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs was the respondent.

The primary legal issues before the court were whether the Tribunal erred in law by failing to consider the applicant's submissions regarding his gambling addiction as a factor beyond his control, and whether the Tribunal had properly considered all relevant evidence when determining that the applicant had breached his visa conditions. The court was also asked to consider if the Tribunal had disregarded any substantive submissions made by the applicant.

Humphreys J found that the Tribunal had plainly considered the applicant's evidence of a gambling addiction, noting it at paragraphs 20 to 22 of its decision. However, the Tribunal was of the view that this was a circumstance within the applicant's control and for which he was responsible, as reflected at paragraph 70 of its decision. The court concluded that there was no "substantive submission" that the Tribunal disregarded, and it was open for the Tribunal to find that these matters were not beyond the applicant's control. The court also noted that submissions and documentation were filed late, and the applicant himself acknowledged that he was obliged to hold a qualification at AQF level 8 or higher and that he had been in breach of his visa conditions since late 2017. The Tribunal was not satisfied that the applicant's academic results were due to his concern for his grandmother's health, particularly as he had failed subjects before her condition became severe and was no longer enrolled in that course when she was hospitalised.

The application for judicial review was dismissed.