Bains (Migration)

[2021] AATA 1026

Bains (Migration) [2021] AATA 1026 (22 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Navpreet Bains

CASE NUMBER:  1924382

DIBP REFERENCE(S):  BCC2017/2632317

MEMBER:Michael Ison

DATE:22 January 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision not to grant the applicant a Student (Temporary) (Class TU) visa and finds that the applicant meets the following criteria for a Subclass 500 (Student) visa:

Public Interest Criterion 4013 for the purposes of cl.500.217(1) of Schedule 2 to the Regulations.·          

Statement made on 22 January 2021 at 5:20pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – affected by a ‘risk factor’ – previous student visa cancelled under s.116 – 3-years exclusion period – whether ‘time of decision’ or ‘time of application’ criteria – date of visa application – compelling circumstances affecting the interests of Australia – previous study history in Australia – change in study pathway – clear continuing study intention – genuine student – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.217; Schedule 4, PIC 4013

CASES
Akhtar (Migration) [2020] AATA 3162

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 12 August 2019 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

2. The applicant is Mr Navpreet Bains, who is a 27-year-old Indian national. Mr Bains is referred to in these reasons for decision as the applicant. The Tribunal discussed the applicant’s immigration history in Australia with the applicant, which may be summarised as follows.

3. The applicant arrived in Australia on 18 February 2014 as the holder of a Student (Subclass 573 Higher Education Sector) visa and has completed the following courses in Australia:

   ·English Language course - May 2014;

   ·Certificate IV in Business - August 2015;

   ·Diploma of Business - June 2016;

   ·Advanced Diploma of Business - January 2017;

   ·Certificate III in Commercial Cookery - September 2018;

   ·Certificate IV in Commercial Cookery - April 2019; and

   ·Diploma of Hospitality Management – October 2019.

4. The applicant provided certificates of completion and academic transcripts for the Certificates III and IV in Commercial Cookery and Diploma of Hospitality Management to the Tribunal and a certificate of completion and academic transcript for the Diploma of Business and Advanced Diploma of Business to the Department. The Tribunal accepts this evidence.

5. On 15 August 2017 the applicant’s first Student (Subclass 573) visa was cancelled under s.116(1)(b) of the Act for failing to comply with a condition of that visa being condition 8202(2)(a) from Schedule 8 to the Migration Regulations 1994 (the Regulations) which required the applicant to maintain enrolment in a registered course.

6. The applicant applied for his second Student (Subclass 500) visa on 24 July 2017. It is the refusal to grant the applicant a second Student visa that is the subject of this review.

7. At the time of applying for his second Student visa the applicant was granted a Bridging A (Subclass 010) visa which ceased on 15 August 2017 when the applicant’s first Student visa was cancelled.

8. The applicant was subsequently granted a Bridging E (Subclass 050) visa on 17 August 2017 which the applicant continues to hold at the time of this decision. The applicant’s Bridging E visa has visa conditions 8101 (No Work), 8401 (Report As Directed) and 8506 (Notify New Address) from Schedule 8 of the Regulations attached.

   The primary decision

9. The applicant provided the Tribunal with a copy of the primary decision of the delegate. The delegate refused to grant the applicant a Student visa on the basis that the applicant did not satisfy public interest criterion 4013 (PIC 4013), which meant the applicant did not satisfy the primary criteria in cl.500.217(1) of Schedule 2 to the Regulations for the grant of a Student visa.

10. The delegate who refused the applicant’s application for a Student visa found the applicant was affected by a ‘risk factor’ contained in PIC 4013(2)(b) because the applicant had his previous Student visa cancelled under s.116(1)(b) of the Act for noncompliance with visa condition 8202. Therefore to satisfy PIC 4013(1), the applicant had to make the application for the Student visa that is the subject of this review more than three years after the cancellation of his previous Student 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.

11. The delegate found the applicant did not satisfy PIC 4013(1)(a) by having applied for the Student visa more than three years after the cancellation of his previous Student 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 Student visa.

12. A copy of PIC 4013 is attached to these reasons for decision.

    Tribunal hearing

13. The applicant appeared before the Tribunal on 17 September 2020 to give evidence and present arguments, by telephone.

14. The applicant was represented by Mr Ashutosh Sharma from A & N Migration Education and Recruitment Consultants, who is a registered migration agent, during the review. The applicant’s representative participated in the Tribunal hearing by telephone.

15. 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, the applicant’s representative and the Tribunal could satisfactorily hear and understand each other during the hearing.

16. 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.

    Pre-hearing submissions

17. On 10 September 2020 the Tribunal received a submission on behalf of the applicant which attached documents including:

    ·A Confirmation of Enrolment for an Advanced Diploma of Leadership and Management with the course commencing on 12 October 2020 and finishing on 11 April 2021 at a cost of AUD3,000;

    ·A Confirmation of Enrolment for a Certificate III in Commercial Cookery with the course commencing on 4 September 2017 and finishing on 2 September 2018 at a cost of AUD10,300;

    ·A Confirmation of Enrolment for an Advanced Diploma of Leadership and Management with the course commencing on 11 November 2019 and finishing on 4 October 2020 at a cost of AUD8,200;

    ·A Confirmation of Enrolment for a Certificate IV in Commercial Cookery with the course commencing on 15 October 2018 and finishing on 14 April 2019 at a cost of AUD5,000;

    ·A Confirmation of Enrolment for a Diploma of Hospitality Management with the course commencing on 15 April 2019 and finishing on 13 October 2019 at a cost of AUD4,400;

    ·A Confirmation of Enrolment for an Advanced Diploma of Leadership and Management with the course commencing on 14 October 2019 and finishing on 11 October 2020 at a cost of AUD8,600;

    ·A copy of a sealed award of a Certificate III in Commercial Cookery and record of results for that course, both dated 29 March 2019 from Australian Technical College in Western Australia;

    ·A copy of a sealed award of a Certificate IV in Commercial Cookery, record of results and the completion letter for that course, all dated 1 May 2019 from Australian Technical College in Western Australia; and

    ·A copy of emails with various dates between the applicant and the delegate of the Minster regarding the applicant’s complaint that the primary decision made on 12 August 2019 was affected by jurisdictional error.  

18. The Tribunal also received various other correspondence from the applicant’s representative in relation to arranging the applicant’s participation in the Tribunal hearing and other administrative matters.

    Post-hearing submissions

19. On 3 October 2020 the Tribunal received the following submissions on behalf of the applicant:

    ·A two-page undated written statement from the applicant’s representative;

    ·A Confirmation of Enrolment for an Advanced Diploma of Leadership and Management with the course commencing on 12 October 2020 and finishing on 11 April 2021 at a cost of AUD3,000;

    ·A copy of the applicant’s Certificate of Completion for a Diploma of Hospitality Management, Record of Results and the completion letter for that course, all dated 12 February 2020 issued by Australian Technical College in Western Australia;

    ·A copy of a certificate of service letter dated 1 October 2020 from the applicant’s previous employer Tony’s Pizzeria confirming the applicant had worked with this employer as a cook from 10 January 2016 until 2 May 2017; and

    ·A document named ‘Submissions-2.doc 203KB’ that the Tribunal could not open.

20. On 7 October 2020 and 13 October 2020, a Tribunal officer contacted the applicant’s representative to request him to re-submit the document that could not be opened.

21. On 13 October 2020 the Tribunal received an email submission from the applicant’s representative which had the content of the document the Tribunal could not open pasted into the email.

22. The Tribunal has had regard to the applicant’s oral evidence, all of the information in the written and oral submissions provided to the Tribunal on the applicant’s behalf and to the information in the Tribunal’s file and the Tribunal’s copy of the Department’s file.

23. For the following reasons, the Tribunal has concluded that the decision under review should be set aside.

    CONSIDERATION OF CLAIMS AND EVIDENCE

24. 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.500.217(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.

25. 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?

26. The applicant confirmed during the Tribunal hearing that his previous Student visa was cancelled on 15 August 2017.

27. 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?

28. 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)).

29. The primary decision records that the applicant applied for the Student visa that is the subject of this review on 24 July 2017, which is not more than three years after the applicant’s previous Student visa was cancelled on 15 August 2017. The applicant confirmed during the hearing that he did not wait for three years after the cancellation of his previous Student visa to apply for the Student visa, the refusal of which is the subject of this review.

30. The applicant’s representative made oral submissions during the hearing that the applicant’s circumstances did not enliven the operation of PIC 4013. After the Tribunal hearing the applicant’s representative confirmed these submissions in writing as follows:

    It is kindly submitted that PIC 4013 is a time of decision criteria as stated in Sch 2 of Subclass 500 visa as it falls under the header “Primary Criteria” stated under cl 500.2 of the Sch 2 of Subclass 500 of Migration Regulations which specifically says that all criteria must be satisfied at the time of decision.

    It is respectfully submitted, that if the Respected Member would were to make a decision anytime after today, it would have been more than 3 years since the applicant’s previous visa, i.e. subclass 500 would have been cancelled and therefore the applicant would no longer be affected by PIC 4013 at the time Tribunal makes a decision on the application under review.

    Because of the above circumstances, we request the Learned Member to kindly remit the application to the Department for reconsideration according to Law or use other powers available under the Law in favour of the applicant.

    We thank you for your kind assistance in this matter.

    Akhtar (Migration) [2020] AATA 3162 (25 June 2020) (sic) (emphasis in original)

31. In the decision of Akhtar referred to by the applicant’s representative, the Tribunal – differently constituted – found as follows:

    11. At the time of this decision, it has been more than 3 years since the applicant’s previous Subclass 573 student visa was cancelled under s.116 of the Act, on 14 March 2017.

    12. Therefore, the applicant satisfies PIC 4013.

32. The Tribunal has read the decision of Akhtar and notes that it is not bound by that decision.

33. The Tribunal as presently constituted is of the view that it is not of assistance to view PIC 4013 in terms of whether it is a time of decision or time of application criteria. What PIC 4013(1)(a) establishes based on its clear wording is that if an applicant applies for another visa at any time before the date that is three years after the cancellation of their relevant previous visa, then the applicant does not meet PIC 4013(1)(a). This is because PIC 4013(1)(a) provides that the application must be “… made more than 3 years after the cancellation…” (emphasis added).

34. Applying the terms of PIC 4013(1)(a) to the present case the applicant’s first Student visa was cancelled on 15 August 2017. This means that to comply with PIC 4013(1)(a) the applicant needed to apply for his second Student visa on or after 15 August 2020. The applicant did not do so. The applicant applied for his second Student visa on 24 July 2017.

35. The fact that the applicant applied for his second Student visa before the cancellation of his first Student is immaterial for PIC 4013(1)(a) purposes. Once the applicant’s first Student visa was cancelled PIC 4013 was enlivened and the exclusion period as established for the sole purpose of meeting PIC 4013(1)(a).

36. As the relevant 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?

37. 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)).

38. 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.

39. In the Department’s Procedural Instructions, formerly known as its Policy Advice Manual or PAM3, the Department has provided guidance for delegates of the Minister on the administration of exclusion periods, including under PIC 4013.[1] The Procedural Instruction states:

    This instruction provides guidance to departmental officers in determining whether an exclusion period applies to a visa applicant, and describes the legal requirements and policy that apply in considering exclusion periods.

    The policy is not exhaustive, is not binding on the Tribunal and must not be elevated beyond its purpose as a guide to delegates intended to assist in consistent delegated decision making to the status of a legislative instrument or similar that forms part of the migration law in Australia. However, the Procedural Instruction provides a useful guide to circumstances that may amount to compelling circumstances affecting the interests of Australia or compassionate or compelling circumstances affecting the interests of an Australian citizen, Australian permanent resident or eligible New Zealand citizen when the Tribunal considers the individual circumstances of a particular applicant.

    [1] See the Department’s Procedural Instructions: Migration Act – Visa Cancellation Instructions – Exclusion Periods. Reissued on 1 July 2020 as a Procedural Instruction.

40. The Department has set out in 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.

41. The Tribunal read and explained the Department’s policy to the applicant during the Tribunal hearing and discussed the applicant’s circumstances in the context of the potential application of the policy.

1. The applicant gave evidence about his circumstances, including his previous study history in Australia, supported by oral and written submissions from the applicant’s representative, which the Tribunal summarises as follows:

   ·At the time of the Tribunal’s hearing the applicant was still studying an Advanced Diploma of Leadership and Management which he was due to complete in October 2020 but due to failing five units now expects to complete the course on 11 April 2021;

   ·The applicant provided an updated Confirmation of Enrolment for his Advanced Diploma of Leadership and Management course confirming the amended end date, which the Tribunal accepts;

   ·The applicant was affected by the refusal to be granted his second Student visa on 12 August 2019 and then the move to online learning as part of the response to the COVID-19 global pandemic in early 2020, which contributed to failing the five units;

   ·The Advanced Diploma of Leadership and Management will be the applicant’s last course in Australia, after which he will return to India;

   ·The applicant intends to build his own restaurant on land owned by his family in India and serve a mix of Western and Indian cuisine at the restaurant;

   ·The applicant intends to have an active role in the kitchen of the restaurant and will employ another chef;

   ·The applicant returned to India in 2015 for his sister’s wedding and met a person he described as his “cousin brother” who has a modern restaurant that is doing well and this inspired the applicant to become a chef and open his own restaurant. The applicant hasn’t talked to his cousin brother about his plans to establish his own restaurant, but he expects his cousin brother will help the applicant if needed;

   ·The applicant plans to live with his mother in India when setting up his restaurant, has a brother in India who has his own marketing business and a sister who lives in Canada;

   ·The applicant’s father passed away in India in 2018;

   ·The applicant does not have a romantic partner in Australia; and

   ·The applicant has been working is a seafood restaurant in Australia, first as a kitchen hand and then as a cook and prior to that worked at Tony’s Pizzeria from 10 January 2016 to 2 May 2017 as a cook. The applicant provided a letter of employment from Tony’s Pizzeria and the Tribunal accepts this evidence.

2. The Tribunal discussed with the applicant the reasons for the cancellation of his first Student visa. The applicant told the Tribunal he decided to move from Brisbane to Perth in April 2017 to change his studies to commercial cookery because he had a cousin brother in Perth.  The applicant’s evidence is this meant he missed the February 2017 intake for his Certificate III in Commercial Cookery and had to wait until the September 2017 intake causing a 6-month gap in his studies. The Tribunal was not entirely convinced by the applicant’s explanation but accepts it in the context of the applicant having completed three courses at the Vocational Education and Training Sector (VET) level prior to the cancellation and another three VET level courses after the cancellation.

3. 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 actively or intentionally abused or sought to circumvent Australia’s immigration laws.

4. The Tribunal accepts that the applicant is currently studying and expects to finish those studies on 11 April 2021. The Tribunal finds that the applicant has a clear continuing study intention and gives this consideration significant weight in support of finding that the applicant’s circumstances clearly demonstrate he has been a genuine student in Australia.

5. In the Tribunal’s view the applicant’s circumstances, including his study history in Australia, do clearly demonstrate he has been a genuine student. The applicant has made continuous academic progress despite early difficulties with his Business studies, the cancellation of his first Student visa in August 2017, death of his father in 2018 and recent failures in his current course. The applicant provided the Tribunal with a reasonable explanation for the recent failures given the change in teaching methodology caused by the COVID-19 global pandemic.

6. The applicant was able to explain to the Tribunal in credible terms his reasons for initially studying Business courses in Australia and then switching to cookery and hospitality. The Tribunal was concerned about the number of low cost VET level courses studied by the applicant but given the applicant’s plans for the future accepts that the applicant’s recent courses and current course are of some value to the applicant’s future career.

7. The Tribunal is also aware this review is being conducted during the COVID-19 global pandemic when international movement is restricted and there are significantly less international students in Australia than prior to the pandemic. Those circumstances have caused the Tribunal to give greater weight than it otherwise may have to the applicant’s overall academic progress rather than focusing on the cancellation of the applicant’s previous Student visa.

8. The applicant told the Tribunal he has not applied for any other visa in Australia and does not intend to progress to a Bachelor degree. This evidence was given considerable weight by the Tribunal in deciding the applicant’s circumstances clearly demonstrate he has been a genuine student in Australia. The Tribunal may have had some difficulty accepting that the additional time in Australia and considerable expense that would be involved if the applicant chose to study a Bachelor degree would be of genuine value to the applicant’s career when he intends to establish his own business in India.

9. The Tribunal finds that the applicant’s circumstances, including his previous study history in Australia, do clearly demonstrate that he has been a genuine student in Australia. 

10. The Tribunal finds that in the applicant’s circumstances there are compelling circumstances affecting the interests of Australia under PIC 4013(1)(b)(i) that justify granting the applicant 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.

    Conclusion

11. For these reasons, the Tribunal is satisfied that the applicant meets PIC 4013 for the purposes of cl.500.217(1) of Schedule 2 to the Regulations.

12. Accordingly, the decision under review in relation to the applicant must be set aside and remitted back to the Department for reconsideration with the direction that the applicant meets the requirements of PIC 4013 for the purposes of cl.500.217(1) for the grant of a Student visa.

    DECISION

13. The Tribunal sets aside the decision not to grant the applicant a Student (Temporary) (Class TU) visa and finds that the applicant meets the following criteria for a Subclass 500 (Student) visa:

    ·Public Interest Criterion 4013 for the purposes of cl.500.217(1) of Schedule 2 to the Regulations.

    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.