Aryal (Migration)

Aryal (Migration) [2020] AATA 5714 (21 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Samir Aryal
CASE NUMBER:  1822067
DIBP REFERENCE(S):  BCC2018/2022751
MEMBER:Michael Ison
DATE:21 October 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 21 October 2020 at 9:31am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 – affected by public interest risk factor – cancellation of previous visa – application for student dependant visa not as per specified timeframe – no compelling circumstances – past history of incomplete studies – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 116(1)(b)
Migration Regulations 1994, Schedule 4, public interest criterion 4013, cl 500.317(1)
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 16 July 2018 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under s.65 of the Migration Act 1958 (the Act).
Background
The applicant is Mr Samir Aryal, a 27 year old Nepalese national.
The applicant arrived in Australia on 22 October 2013 as the holder of a Student (Subclass 573 Higher Education Sector) visa that was valid to 15 March 2017 to study English, a Diploma of Business and a Bachelor of Business Management. The applicant completed his English studies and after changing education provider completed the Diploma of Business in 2016 but did not complete the Bachelor of Business Management.
The applicant was granted a second Student visa on 21 March 2017 and studied a Bachelor of Professional Accounting but did not complete that course. On 23 May 2018 the applicant’s second Student visa was cancelled.
The applicant applied for his third Student visa, as a dependent of his wife, Mrs Chandani Joshi, on 9 May 2018 and it is the refusal to grant the applicant that visa that is the subject of this review. Ms Joshi is also a national of Nepal.
The primary decision
The applicant provided the Tribunal with a copy of the primary decision made by the delegate. The delegate refused to grant the visa on the basis that the applicant did not satisfy public interest criterion 4013 (PIC 4013), which meant the applicant did not satisfy the secondary criteria in cl.500.317(1) of Schedule 2 to the Regulations for the grant of a dependent Student visa.
The delegate made these findings because the applicant’s previous visa, his second Student visa, was cancelled on 23 May 2018 under s.116(1)(b) of the Act for a failure to comply with a condition attached to that visa.
The delegate’s findings caused the delegate to also find the applicant is affected by a ‘risk factor’ contained in PIC 4013(2)(b) because the applicant did not comply with a specified condition of his visa. Therefore to satisfy PIC 4013(1), the applicant had to make the application for the visa that is the subject of this review more than three years after the cancellation of his previous visa or satisfy the delegate that there were relevant compelling or compassionate circumstances justifying granting the applicant the visa if he had not waited the three years to apply.
The delegate found the applicant did not satisfy PIC 4013(1)(a) by having applied for the visa more than three years after the cancellation of his previous visa. The delegate also found the applicant did not demonstrate there were relevant compelling or compassionate circumstances under PIC 4013(1)(b)(i) or (ii) and therefore refused to grant the applicant the dependent Student visa.
A copy of PIC 4013 is attached to these reasons for decision.
Tribunal hearing
The applicant appeared before the Tribunal on 10 August 2020 to give evidence and present arguments, by telephone. The Tribunal also took evidence from Ms Joshi.
The applicant was represented by a registered migration agent throughout the review. The applicant’s representative also participated in the Tribunal hearing by telephone.
The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal was satisfied the applicant, Ms Joshi, the applicant’s representative and the Tribunal could satisfactorily hear and understand each other during the hearing.
At the commencement of the Tribunal hearing the Tribunal explained to the applicant the determinative issues before the Tribunal, the Tribunal’s role and how the hearing would proceed including that the Tribunal is independent of the Department and is not bound by the delegate’s primary decision. The Tribunal explained the role of the applicant’s representative during the hearing. The Tribunal informed the applicant that it would seek submissions from the applicant and his representative toward the end of the Tribunal hearing on any matter they considered relevant to the applicant’s review.
Request for extended adjournment of the Tribunal hearing
The applicant’s representative, in a submission dated 31 July 2020, sought an extended adjournment of the Tribunal hearing, submitting:
We are now instructed to seek your assistance in postponing the hearing on the following grounds:
·The applicant has applied for student visa on 9 May 2018 as a dependent of the student visa holder Chandani Joshi ("the nominator")
·On 16 July 2018, the application for the visa was refused
·The applicant applied for a review on 31 July 2018
·The nominator's (who has nominated the applicant as her dependant), student visa expired on 28 December 2018
·The AAT should have processed the application prior to expiry of the nominator's visa as the review application is solely dependent on nominator's visa
·The nominator is waiting for a decision on her visa extension which is currently pending at the AAT
·The nominator has successfully completed Diploma of Nursing and currently studying Bachelor of Nursing at RMIT, Melbourne
·The scheduled hearing date will have no positive effect on the review application
In light of the above and the attachments, we request you to postpone the hearing until a decision is made on the nominator's application and Covid-19 pandemic is over so as to afford procedural fairness to the applicant.
We are aware that the AAT is committed to make just, fair and quick decisions. However, due to the circumstances beyond the control of the applicant and the AAT itself, we urge you to consider this request positively.
Making a decision at this juncture when overseas travel ban is in place and the applicant's case has no legs to stand not only defies natural justice but will also be seen as actual bias. There will be no negative affect to the AAT to postpone the decision. We believe it may be considered jurisdictional error by failing to consider the application of the principles expressed in Minister for Immigration and Citizenship v Li [2013] HCA 18, in relation to the exercise of the power and discretion under s363 (1) (b) to adjourn review of the decision or allow additional time to submit crucial information. (sic)
To place the applicant’s request in context, the applicant lodged his application for review with the Tribunal on 31 July 2018, over two years before the scheduled hearing. The applicant’s application was constituted to the Presiding Member on 2 July 2020.
The Tribunal did not grant the requested adjournment but discussed the reasons the applicant’s representative made the request with the representative at the commencement of the hearing.
Ms Joshi gave evidence to the Tribunal she has sought review by the Tribunal, differently constituted, of the decision to refuse to grant her another Student visa and had a hearing on 12 June 2020 but that matter has not yet been finalised.
The Tribunal indicated to the applicant and his representative it proposed the following approach as an alternative to adjourning the applicant’s hearing until after Ms Joshi’s separate review before the Tribunal, differently constituted, had been resolved:
If after hearing Mr Aryal’s and Ms Joshi’s evidence today I form the view that Mr Aryal could meet the requirements of cl.500.317 to be granted a dependent Student visa then I could consider delaying my decision until there has been a decision in Ms Joshi’s application for review. If Ms Joshi’s application is successful then there would be some utility in such delay and in my decision to remit Mr Aryal’s application back to the Department.
If Ms Joshi’s application is not successful then I would proceed to make a decision on Mr Aryal’s application, on the alternative ground that Ms Joshi does not hold a Student visa and therefore Mr Aryal cannot meet the requirements of cl.500.3.
If, however, I form the view after today’s hearing that Mr Aryal cannot satisfy cl.500.317 then I would proceed to a decision on that ground, without waiting for Ms Joshi’s review at the Tribunal. That would mean I affirm the decision of the delegate on the same ground the delegate refused Mr Aryal’s application. I would note that Ms Joshi does not hold a Student visa at the time of my decision and also note I have not used that as an alternative ground to decide Mr Aryal’s application, although I could have.
The Tribunal later explained to the applicant the alternative ground on which the Tribunal could decide his application, as follows:
I need to inform you that as Ms Joshi does not hold a Student visa if she continues not to do so at the time of the Tribunal’s decision then that would be a new determinative issue. The determinative issue the delegate relied upon and that the Tribunal is considering today is whether you meet PIC 4013 or whether the requirements of PIC 4013 should be waived in your circumstances.
However, it is also a requirement for the grant of a dependent Student visa that the applicant must be the member of the family unit of a person, being the primary Student visa holder, who has met the primary criteria for the grant of a Student visa. If, at the time of the Tribunal’s decision on your review, Ms Joshi is not the holder of a Student visa, then you are not the member of the family unit of a person who has met the primary criteria for the grant of a Student visa. This means you cannot meet the requirements of cl.500.3 and cannot be granted a dependent Student visa.
Do you understand this is a new and different determinative issue from the issue the delegate relied upon?
Is there anything you want to say about this new determinative issue?
The applicant acknowledged to the Tribunal that he understood the alternative determinative issue and its relevance to his review. When invited to comment on the alternative determinative issue the applicant chose not to comment. When the Tribunal invited the applicant’s representative to make submissions on the Tribunal’s proposed approach and the alternative determinative issue the applicant’s representative commented that it would be best for the applicant if the Tribunal waited for the outcome of Ms Joshi’s review but the Tribunal’s proposed approach is very good for the applicant.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant meets cl.500.317(1), which specifies that at the time of decision the applicant must satisfy specified public interest criteria as set out in Schedule 4 to the Regulations, including PIC 4013.
PIC 4013 sets out a number of ways in which an applicant is affected by a ‘risk factor’ including, relevantly, if a visa previously held by the applicant was cancelled under certain provisions of the Act, including s.116. If an applicant is affected by a risk factor, then PIC 4013 will only be satisfied if either the present visa application was made more than 3 years after the relevant visa cancellation, or if the Minister is satisfied that compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen, permanent resident or eligible New Zealand citizen, justify the granting of the visa within 3 years after the relevant visa cancellation.
Is the applicant affected by a risk factor?
The applicant confirmed during the Tribunal hearing that his previous visa was cancelled on 23 May 2018.
The Tribunal finds that the applicant is affected by the risk factor mentioned in PIC 4013(2)(b). As the applicant is affected by a risk factor for PIC 4013, the Tribunal must consider whether the applicant satisfies PIC 4013(1)(a) or (b).
Was the present visa application made more than 3 years after the cancellation?
If an applicant is affected by a risk factor, PIC 4013 can be satisfied if the visa application was made more than three years after the cancellation in question (PIC 4013(1)(a)).
The primary decision records that the applicant applied for the Student visa that is the subject of this review on 9 May 2018, which is not more than three years after the applicant’s previous visa was cancelled on 23 May 2018. The applicant confirmed during the hearing that he did not wait for three years after cancellation of his primary Student visa to apply for the dependent Student visa the refusal of which is the subject of this review.
As the visa application was not made more than three years after the cancellation of the visa in question, the applicant does not satisfy PIC 4013(1)(a).
Are there compassionate or compelling circumstances that justify the granting of the visa?
PIC 4013 can also be satisfied if, in the particular case, there are compelling circumstances that affect the interests of Australia justifying the granting of the visa within 3 years after the cancellation, or there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen justifying the granting of the visa within 3 years after the cancellation (PIC 4013(1)(b)).
The terms ‘compelling circumstances’ and ‘compassionate circumstances’ are not defined in the Act or Regulations. The Macquarie Dictionary relevantly defines ‘compassionate’ to mean ‘having or showing compassion’. ‘Compassion’ is defined as ‘a feeling of sorrow or pity for the sufferings or misfortunes of another; sympathy’. ‘Compel’ is defined as ‘to force or drive, especially to a course of action’. Whether there are compelling and compassionate circumstances is a matter of fact and degree for the Tribunal to determine.
The applicant does not claim if he is not granted a dependent Student visa that the interests of any Australian citizen, permanent resident or eligible New Zealand citizen will be affected.
The Department has set out in its policy document called its Procedural Instructions how the consideration ‘compelling circumstances that affect the interests of Australia’ can be assessed and applied in circumstances where the applicant’s previous visa that was cancelled was a Student visa and the visa they seek to have the PIC 4013 three year exclusion period waived for is also a Student visa:
There may be compelling circumstances affecting the interests of Australia in the case of non-citizens whose last substantive visa was a Student visa and who are applying for a new Student visa. If the applicant’s circumstances, including previous study history in Australia, clearly demonstrate that they have been a genuine student in Australia, and there is no evidence that they have actively or intentionally abused or sought to circumvent immigration laws, s65 delegates may accept that compelling and compassionate circumstances exist. If the student wishes to apply for another Student visa, significant weight may also be given where there is evidence of a clear continuing study intention.
The Tribunal discussed the applicant’s circumstances and read and explained the Department’s policy to the applicant during the Tribunal hearing. The applicant’s representative submitted to the Tribunal that the policy applies to the applicant and justifies granting him a Student visa even though he did not wait for three years after the cancellation of his previous visa to apply for the Student visa.
The applicant gave evidence about his circumstances, including his previous study history in Australia, which the Tribunal summarises as follows:
·In June 2017 the applicant’s father was diagnosed with kidney failure and the applicant provided medical reports from Nepal dated June, July and November 2017 in support of this evidence;
·The ill health of the applicant’s father adversely affected the applicant’s ability to study;
·The applicant provided a medical certificate dated March 2017 from a general practitioner referring the applicant to the Psychiatry Dept at a public hospital in Sydney;
·The applicant was prescribed medication at that time but found it did not assist him and he stopped taking it;
·The applicant’s father passed away in January 2019 while waiting for a kidney transplant;
·On 14 August 2017 the applicant married Ms Joshi in Australia;
·Ms Joshi is not a citizen or permanent resident of Australia or a New Zealand citizen, currently holds a Bridging (Subclass 020) B visa and has applied for a Student visa to study a Bachelor of Nursing;
·Ms Joshi initially intended to study in New South Wales but her enrolment was cancelled when her application for another Student visa was refused and Ms Joshi then obtained enrolment in the Bachelor of Nursing in Melbourne;
·Ms Joshi and the applicant intended to move to Melbourne but due to the travel restrictions imposed as a result of the COVID-19 global pandemic they have not been able to move to Melbourne and Ms Joshi has been studying her course online;
·On 10 April 2018 the Department served on the applicant a Notice of Intention to Consider Cancellation of his Student visa (NOICC);
·On 13 April 2018 the applicant responded to that NOICC saying his father’s illness had caused the applicant to become unwell and had meant that his parents had been unable to continue to support the applicant’s studies financially and the applicant was having problems in his marriage at the time, the net effect of which was the applicant could not study;
·On 9 May 2018, before the applicant’s existing Student visa was cancelled, the applicant applied for a new Student visa as a dependent of Ms Joshi;
·Up until that time the applicant and Ms Joshi had intended separating and the applicant was making plans to move back to Melbourne to study on his own. The applicant had decided to return to Melbourne because he has friends there;
·Prior to his intended departure Ms Joshi convinced the applicant to stay in New South Wales and they decided jointly that the applicant should apply for a Student visa as a dependent of Ms Joshi;
·The applicant has held a Bridging E visa since shortly after his application for the dependent Student visa was refused on 16 July 2018. The Bridging E visa he holds has a work limitation and notify change of address conditions attached to it;
·The Bridging E visa is not subject to any condition limiting the applicant’s ability to study in Australia;
·The applicant has not studied while holding the Bridging E visa, but has chosen to support his wife, including financially, in her studies initially by working part time in a bakery and subsequently as a food delivery driver but has not worked during the COVID-19 global pandemic;
·The applicant and Ms Joshi live in Australia using Ms Joshi’s income working part time in an Oporto fast food restaurant to live on;
·The applicant needs to be in Australia to support his wife in her Bachelor of Nursing studies, including because a Bachelor degree is quite expensive, but also to provide emotional and other support to Ms Joshi; and
·If the applicant has to leave Australia before Ms Joshi has completed her studies then they will be separated and that will “destroy” the applicant emotionally.

The Tribunal accepts this evidence of the applicant, including the impact his father’s illness and subsequent death had on the applicant’s ability to study, subject to the Tribunal’s observations in paragraph 39 of these reasons.
Ms Joshi gave evidence to the Tribunal which may be summarised as follows:
·Ms Joshi arrived in Australia on 8 August 2014, is from Nepal and held a Student visa;
·Ms Joshi’s last Student visa ceased in March 2019 and she currently holds a Bridging (Subclass 010) A visa;
·Ms Joshi’s application for the Student visa was refused because the decision maker said she had had too may enrolments in Australia and Ms Joshi acknowledged she has changed courses a lot in her time in Australia;
·Ms Joshi has not had a visa cancelled while in Australia but she did have an enrolment in an accounting course cancelled;
·Ms Joshi provided the Tribunal with a Confirmation of Enrolment in a Bachelor of Nursing which commenced on 20 July 2020 and confirmed she had commenced those studies, online in New South Wales with her education provider being in Victoria;
·Ms Joshi is finding the Bachelor course much harder than the Diploma of Nursing she completed in Australia and is due to finish her Bachelor course on 31 December 2022;
·Ms Joshi could not recall how much her fees are for the Bachelor of Nursing, but thought they were around AUD15,000 to AUD16,000 per semester;
·The applicant is the only support Ms Joshi has in Australia, apart from an aunt, and he provides her with emotional and financial support and it would be really hard for Ms Joshi to study in Australia without the applicant’s support;
·Ms Joshi is planning to return to Nepal at the end of her Bachelor course to work in a hospital or non-government organisation; and
·It would be devastating, not just financially, but also emotionally, for Ms Joshi if the applicant had to leave Australia before Ms Joshi has completed her studies.
Ms Joshi provided the Tribunal with a Certificate of Completion for a Diploma of Nursing awarded in December 2019 and a Confirmation of Enrolment for a Bachelor of Nursing. The Tribunal accepts Ms Joshi’s evidence, subject to the observations of the Tribunal below.
The Tribunal notes in relation to the evidence of the applicant and Ms Joshi:
·The applicant gave evidence Ms Joshi currently holds a Bridging B visa while Ms Joshi’s evidence was she holds a Bridging A visa. The Tribunal accepts Ms Joshi’s evidence in this regard;
·Victoria has not closed its borders at any stage of the COVID-19 global pandemic and so there has been no impediment arising from the pandemic to the applicant and Ms Joshi moving to Melbourne if they chose, contrary to the applicant’s evidence;
·The applicant’s representative submitted on 31 July 2020 that Ms Joshi’s last Student visa expired on 28 December 2018 contrary to Ms Joshi’s evidence that it expired in March 2019; and
·The Confirmation of Enrolment for Ms Joshi’s Bachelor of Nursing course that she provided to the Tribunal indicates total course fees for that two and a half year course are AUD86,400 or approximately AUD16,000 per semester, which is consistent with Ms Joshi’s evidence in that regard.
Nothing material turns on the first three dot points above for present purposes and the Tribunal does not make any findings adverse to the applicant arising from those inconsistencies.
In considering the application of the Department’s policy in relation to former Student visa holders to the applicant’s circumstances, there is no information before the Tribunal that the applicant has have actively or intentionally abused or sought to circumvent Australia’s immigration laws.
The applicant’s representative submitted to the Tribunal that the applicant is not studying but is intending to study. That was not the evidence of the applicant. The applicant’s unequivocal evidence was that he has applied for the dependent Student visa to support Ms Joshi in her studies in Australia rather than to undertake any study himself.
This Department’s policy is clear on its own terms that evidence of an applicant having a clear continuing study intention can be given significant weight in assessing whether an applicant has been a genuine student in Australia. The Tribunal finds that there is no evidence of the applicant having an a clear continuing study intention and gives this consideration no weight in favour of finding the applicant has been a genuine student in Australia.
The Tribunal also finds that the applicant’s history in Australia, including his study history, does not clearly demonstrate he has been a genuine student. The applicant has held a visa since July 2018 that has entitled the applicant to study but the applicant has chosen not to study. The Tribunal acknowledges and accepts that the illness and eventual death of the applicant’s father in January 2019 had a profound impact on the applicant and significantly adversely affected his ability to study.
However, the applicant’s evidence was again unequivocal that after experiencing difficulties in his marriage the applicant and his wife decided he should support Ms Joshi rather than study. The applicant and Ms Joshi gave effect to this plan when the applicant applied for a Student visa as a dependent of Ms Joshi rather than in his own right on 9 May 2018, prior to the applicant’s primary Student visa being cancelled on 23 May 2018.
Shortly after the cancellation of his Student visa the applicant was granted a Bridging E visa and the applicant gave evidence, which the Tribunal accepts, that the Bridging E visa did not have any conditions attached to it restricting the applicant’s right to study in Australia. Despite holding this visa for over two years at the time of this decision, the applicant has chosen not to undertake further study in Australia.
The Tribunal accepts that the applicant’s limited academic progress in Australia, evidenced by the applicant not completing either the Bachelor of Business or Bachelor of Professional Accounting courses he enrolled in, was significant and detrimentally affected by the illness and eventual death of his father in January 2019. However, the applicant did not give any evidence of making any attempt to return to study in the over 18 months since his father’s death or of having any intention to do so. The applicant’s evidence was he has chosen to support Ms Joshi in her studies in Australia instead and explained his reasons for doing so, which the Tribunal accepts.
The Tribunal finds that the applicant’s circumstances, including his previous study history in Australia, do not clearly demonstrate that he has been a genuine student. The applicant is not currently enrolled in a registered course, did not provide evidence of having a clear continuing study intention and has chosen for over the past two years not to study when he had the right to do so, prioritising instead supporting his wife, Ms Joshi, in her studies.
For these reasons, the Tribunal finds the applicant’s circumstances do not amount to compelling circumstances affecting the interests of Australia under the intent or terms of the Department’s policy in relation to former Student visa holders.
The applicant’s representative also submitted that there may be compelling circumstances affecting the interests of Australia, given the importance of international students to the education “industry” in Australia, arising from the impact on bi-lateral relations between Nepal and Australia if international students from Nepal like the applicant are refused Student visas in his circumstances. The applicant did not provide any evidence to support this submission.
The Tribunal does not accept this submission. According to publically available information from the Department of Education, Skills and Employment that publishes a monthly summary on data relating to international students in Australia[1] there were 664,219 international students in Australia up to August 2020, eight per cent of whom come from Nepal. Accordingly, this means that as at August 2020 there were over 50,000 international students in Australia from Nepal.
[1] Sourced on 20 October 2020 from: >
The Tribunal does not accept in the context of there being tens of thousands of international students from Nepal in Australia to study that the refusal to grant the applicant a dependent Student visa in the applicant’s circumstances would have any impact on Australia’s bi-lateral or other relations with Nepal or otherwise impact Australia to any noticeable extent.
The applicant and his representative did not provide evidence or make submissions that the requirements of PIC 4013 should be waived on any other grounds.
The Tribunal finds that in the applicant’s circumstances there are no compelling circumstances affecting the interests of Australia under PIC 4013(1)(b)(i) that justify granting him a Student visa even though he did not wait, in accordance with the requirements of PIC 4013(1)(a), for three years after the cancellation of his previous visa to apply for that Student visa.
For these reasons, the Tribunal is not satisfied that the applicant meets Public Interest Criterion 4013 for the purposes of cl.500.317(1) of Schedule 2 to the Regulations.
Conclusion
Given the findings above, the Tribunal concludes that the secondary criteria for the grant of a Subclass 500 (Student) visa are not met by the applicant. The applicant does not claim to meet the primary criteria for the grant of a Subclass 500 (Student) visa or the criteria for the grant of a Subclass 590 (Student Guardian) visa.
Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Michael Ison
Senior Member
Migration Regulations 1994
Schedule 4 - Public Interest Criteria and Related Provisions
4013
(1)If the applicant is affected by a risk factor mentioned in subclause (1A), (2), (2A)or (3):
(a) the application is made more than 3 years after the cancellation of the visa or the determination of the Minister, as the case may be, referred to in the subclause that relates to the applicant; or
(b)  the Minister is satisfied that, in the particular case:
(i)      compelling circumstances that affect the interests of Australia; or
(ii)       compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify the granting of the visa within 3 years after the cancellation or determination.
(1A)    A person is affected by a risk factor if a visa previously held by the person was cancelled:
(a)  under section 109, paragraph 116(1)(d), subsection 116(1AA) or (1AB) or section 133A of the Act; or
(b)  under section 128 of the Act because the Minister was satisfied that the ground mentioned in paragraph 116(1)(d) of the Act applied to the person; or
(c) under section 133C of the Act because the Minister was satisfied that the ground mentioned in paragraph 116(1)(d) or subsection 116(1AA) or (1AB) of the Act applied to the person.
(2)A person is affected by a risk factor if a visa previously held by the person was cancelled under section 116, 128 or 133C of the Act:
(a)       because the person was found by Immigration to have worked without authority; or
(b)  if the visa was of a subclass specified in Part 2 of this Schedule — because the person did not comply with a condition specified in that Part in relation to that subclass; or
(c)  if the visa was a Subclass 773 (Border) visa and, at the time of grant of the visa, the person was apparently eligible for a substantive visa of a subclass specified in Part 2 of this Schedule — because the person did not comply with a condition specified in that Part in relation to that subclass of substantive visa; or
(ca)  because the person held a student visa and the Minister was satisfied that a ground mentioned in paragraph 116(1)(fa) of the Act applied to the person; or
(d)  because the Minister was satisfied that a ground prescribed by paragraph 2.43(1)(ea), (i), (ia), (j), (k), (ka), (kb), (kc), (m), (o), (oa) or (ob) applied to the person.
(2A)A person is affected by a risk factor if a visa previously held by the person was cancelled under section 137J of the Act.
(3)A person is affected by a risk factor if a visa previously held by the person was cancelled because the Minister was satisfied that a ground mentioned in paragraph 116(1)(e) of the Act applied to the person.

[2020] AATA 5714

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction