Bista (Migration)

[2023] AATA 3042

Bista (Migration) [2023] AATA 3042 (14 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Pramod Bista
Miss Sabina Nepal

REPRESENTATIVE:  Mr Komal Khatiwada (MARN: 0853554)

CASE NUMBER:  2303000

HOME AFFAIRS REFERENCE(S):          BCC2022/1096301

MEMBER:David McCulloch

DATE:14 September 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 500 (Student) visa.

The Tribunal has no jurisdiction with respect to the second named applicant.

Statement made on 14 September 2023 at 10:10am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – applicant convicted of an offence – family bereavement – sentence completed – solid academic progress – plans for a business in Nepal – numerous character and work references – impact on applicant’s wife – decision under review set aside         

LEGISLATION

Migration Act 1958, ss 116, 140, 348, 359
Migration Regulations 1994, r 2.43

CASES

Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors v MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 27 February 2023 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s Subclass 500 (Student) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a citizen of Nepal born in 1997. The visa that was cancelled was granted on 14 January 2022, with a stay period to 29 March 2023.

3. A Notice of Intention to Consider Cancellation (NOICC) was sent to the applicant on 3 February 2023. The applicant provided a response to the NOICC on 9 February 2023.

4. The delegate cancelled the visa under s 116(1)(g) on the basis that the applicant has been convicted of an offence against a law of the Commonwealth or State or Territory. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. For the purposes of the Tribunal’s jurisdiction under s 348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The second named applicant’s visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s 140(1) of the Act which made the cancellation of the second named applicant’s visa self-executing on the cancellation of the first named applicant’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the visa cancellation under s 140(1), the Tribunal has no jurisdiction with respect to the second named applicant.

6. The first named applicant (‘the applicant’) appeared before the Tribunal on 7 September 2023 at 9.30 am to give evidence and present arguments. The Tribunal also received oral evidence from Miss Sabina Nepal, the second named applicant and the applicant’s wife. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

7. The applicants were represented in relation to the review.

8. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. Under s 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly to this case, these include the ground set out in s 116(1)(g). If satisfied that the ground for cancellation is made out, the decision‑maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

10. A visa may be cancelled under s 116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in reg 2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in reg 2.43(1)(oa) is relevant. Regulation 2.43(1)(oa) provides that a ground for cancellation is that the holder of the visa has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any)).

11. The delegate’s decision record and documents on the Department file indicate that the applicant was convicted of the criminal charges of ‘Assault police officer in execution of duty w/o abh-T2’, ‘Resist or hinder police officer in the execution of duty’ and ‘Assault occasioning actual bodily harm-T2’ on 30 March 2022 at Downing Centre, Local Court. The applicant was fined $1,000 in total for the offences and was sentenced to a 9-month conditional release order commencing on 30 March 2022, concluding on 29 December 2022.

12. In the hearing, the applicant acknowledged the convictions and sentence.

13. For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(g) exists. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

14. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’. These matters include: the purpose of the visa holder’s travel to and stay in Australia; compelling reasons to remain in Australia; the extent of compliance with visa conditions; the degree of hardship that may be caused to the visa holder and any family members; the circumstances in which the ground for cancellation arose – whether there are extenuating circumstances beyond the visa holder’s control; the visa holder’s past and present behaviour towards the Department; whether there are any persons in Australia whose visas would or may be cancelled under s 140 (i.e. consequential cancellation); whether there are mandatory legal consequences to the decision (whether indefinite detention is a possible consequence in light of any non‑refoulement obligations); provisions in the Act which prevent the person making a valid application without the intervention of the Minister; whether the person would become an unlawful non-citizen and liable to be detained upon cancellation; whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation; the impact on children of the cancellation; whether the cancellation would lead to removal in breach of Australia’s non-refoulement obligations; and any other relevant matters.

15. The following is a summary of the New South Wales Police Facts Sheet, which outlines the charges against the applicant. On 23 March 2023 the applicant was drinking at a venue in the Sydney CBD. The applicant left the venue and was walking on the street when he saw a patron he had seen earlier in the evening at the venue, ran up to the patron and hit him with a closed fist to the back of his head, causing the victim to fall to the ground. Police then observed the applicant and the victim having a physical altercation, and observed the applicant punch the victim on his cheek. Police approached the scene and attempted to grab hold of the applicant. The applicant resisted police by pushing his chest against the officer, causing the officer harm to his chest and arm. The applicant ran from police, however, he was shortly arrested and transported to Day Street Police Station.

16. In his response to the NOICC dated 3 February 2023, the applicant provided to the Department the following response dated 9 February 2023 (not corrected for spelling or grammar, headings omitted):

    Currently, I am studying Certificate IV of Commercial Cookery and Diploma of Hospitality Management at Queensford College, Parramatta, NSW and I will be completing my course in 3 months’ time. I am doing good on my studies and acquiring knowledge and skills that prepares me to have an outstanding career in hospitality industry. The completion of course is very important for me as it gives me the opportunity to have a career as a Chef and advance my future. I have a plan to run my own restaurant in Nepal and have spoken to my wife and parents about it and they are excited. My parents and my wife have a great expectation on me and if my student visa is to be cancelled, my dreams will be shattered, I will be emotionally and equally, psychologically traumatized and I will become a looser. Therefore, my education and work experience in Australia is my biggest asset and successfully completing my studies will be return on investment that my parents are making for my education.

    Further, I have paid the price for the offences that I have committed. And in my 9 months Conditional Release Order decided by Downing Centre Local Court on 30/03/2022 commencing from 30/03/2022 and has concluded on 29/12/2022. During the time, I have no character issues and, in my workplace I am appreciated by my coworkers for my hard work and team player attitude. Therefore, I believe the ground for visa cancellation does not exist and I am not a threat to Australian community and security. I have also attached my Criminal Police Check, Character Reference Letter from Work, Character Reference from College, Character Reference from my Cricket Club for your reference.

    Similarly, in my studies and with my classmates and teachers I have earned a good reputation for being a good student who does his assignments and classwork on times and performing well doing practical kitchen session where we have to prepare dishes that our trainer has taught us. My classmates look upon me if they are struggling in understanding their assignment and coursework.

    To conclude, I am remorseful what I have done on the past and I am a better person now, whose soul intention to remain in Australia is for study purpose and I shall not get involved in any such behavior which undermines the Australian values and law.

17. In addition to his written submission in response to the NOICC, the applicant provided the following documents to the Department:

    a.A Work Placement Completion Confirmation issued by Queensford College, dated 8 February 2023.

    b.A written reference from Executive Chef of Holiday Inn Sydney Airport, Satej Saigaonkar, dated 8 February 2023.

    c.A character reference from the Captain/Director of Amadablam Blazers Cricket Club, Shambhu Raja Hamal, dated 8 February 2023.

    d.A character ceference from Campus Manager of Queensford College, Subrat Shakya, dated 9 February 2023.

    e.A Nationally Coordinated Criminal History Check Certificate, dated 15 December 2022.

18. A statutory declaration of the applicant dated 30 August 2023 was provided to the Tribunal which reads as follows (not corrected for spelling or grammar):

    1.       I say that I arrived in Sydney on 26th June 2018 with the intent to further my education in the field of accounting. With a keen interest in finance, I enrolled in the Diploma of Accounting, which I successfully completed on 5th January 2020. Subsequently, I embarked on the Advanced Diploma of Accounting, demonstrating my commitment to advancing my skills and knowledge.

    2.       In light of my dedication and passion for the field, I decided to elevate my expertise by applying for the Graduate Diploma of Accounting and was granted a COE in recognition of my academic pursuits.

    3.       However, life took an unexpected tum. The advent of the Covid-19 pandemic disrupted educational institutions worldwide. My educational provider was in the process of transitioning to online teaching, causing a hiatus in my academic journey. I was unable to complete my Advanced Diploma of Accounting due to these unforeseen circumstances.

    4.       The challenges of the pandemic were not limited to academic disruptions. I suffered a personal loss that shook me deeply. My grandmother in Nepal, with whom I shared an emotional bond, tragically passed away due to Covid-19 complications. The grief and psychological trauma of this loss required time for healing and reflection.

    5.       On the professional front, since my arrival in Sydney, I have been employed in a commercial kitchen. This experience opened a new world of culinary a1ts for me. The skills I acquired and the passion I developed for this profession led me to a pivot in my academic pursuits.

    6.       Recognizing the potential for a fruitful career in this field, I chose to study Commercial Cookery and Hospitality Management course from Queensford College which I have completed on 4th April 2023.

    7.       I have decided to join Advanced Diploma in Cookery and Hospitality Management which is set to begin from 11th of September 2023. I want to complete this course before going back to Nepal.

    8.       On 24th February 2022, my friends and I decided to explore the vibrant nightlife of Sydney. Our destination was the Nepalese Bar and music venue called "Galli Galli" near the Sydney Town Hall. It was a place known for its lively atmosphere and cultural diversity.

    9.       Little did we know, an unexpected encounter awaited us. There was a guy at the bar who seemed to have had a bit too much to drink. His behaviour was inappropriate, and he was using offensive language. We knew that engaging with him might lead to trouble, so we made a wise decision.

    10.      We left Galli Galli and headed to another popular spot in the area, and went to the "Three Wise Monkey" pub. Our new location proved to be a fantastic choice. The ambiance was lively but more relaxed, and we danced the night away, enjoying ourselves to the fullest. However, as the night came to a close, fate had one more twist in store. On our way back home, we unexpectedly crossed paths with the same guy with his other friends from Galli Galli. He appeared to be in a confrontational mood, uttering disrespectful words.

    11.      Even being drunk, I wanted to avoid the situation. But, he came with a aggression and an intent for confrontation. All of sudden, he punched me and I resisted and avoided. Just to avoid hitting me again, I also punched him.

    12.      Amidst the chaos, I felt someone grabbed me from behind. I was unaware of the person who hold me from behind.

    13.      It was a police officer, but I was thinking it must be someone from the opposing group trying to get hold of me waiting their friends to come and bash me. Therefore, I instinctively resisted.

    14.      I didn't see anything there just ran off from there. After 20-30 mins I was walking on the street and one of the police officer asked me to stand still and he took me to the police station. The officer charged me for resisting Police Officer and assaulting Police officer in execution on duty w/o abh-T2.

    15.      I appeared before the court on 30 March 2022. I was really afraid as I had never been exposed to such incidents. In Nepal, where I grew up, such incidence is not taken as serious. Therefore, I did not seek legal advice as I did not know what to do after this.

    16.      Without any legal assistance, I appear before the court and honestly told the court what happened on that night.

    17. The court convicted me and directed to enter into a Conditional Release Order for 9 months pursuant to Section 9 (1) (a) of the Crimes (Sentencing Procedure) Act 1999 to commence on 30 March 2022.

    18.      I remember the Honorable judge told me that 'it is because of the other idiot, now you became another idiot". I was full of tear in my eyes. I regret this incidence for my life.

    19.      Because of the above court order, my visa was cancelled by the Department.

    20.      I say that I never had such incident before. I deeply regret this error in judgment and understand the gravity of my actions. I understand that this was a result of influence of alcohol consumption.

    21.      I have paid the fine imposed by the court and I have completed the good behavior bond successfully. Please refer to the attached email herewith.

    22.      I have learnt from my mistake. With this expensive but eye-opening experience, I am the much better person now and I am trying to be better person every day.

    23.      I have been a regular Cricket Player. I play from a local club Amadabalam Cricket Club. My friends and fellow cricket team mate have also provided character reference. Please refer to the attached annexures.

    24.      I have no criminal records in Nepal and I have been a law abiding person all the time.

    25.      My parents from Nepal have sent to me to study. They have been supporting me financially throughout this period.

    26.      I have been studying and completed all the courses even if my visa was cancelled. They have a great expectation from me that I would return to Nepal and continue my career as a Chef to support them.

    27.      I say that if allowed further, I will complete my Advanced Diploma course and return to Nepal so that my parents will be proud of me.

19. Also provided to the Tribunal was the following:

    ·Legal submissions dated 31 August 2023.

    ·Tax invoice dated 29 August 2023 from Logic Lounge Psychology for one session.

    ·Booking Confirmation for Anger Management Course, appointment date Wednesday 30 August 2023.

    ·Character reference dated 28 August 2023 from Shambhu Raja Hamal and Isu Malla Hamal, members of the applicant’s cricket club, Amadablam Blazers. They state they have known the applicant for over two years, and the applicant is of fine and responsible character. They state the applicant has confessed his lack of judgement and they believe the applicant regrets his offence. They state the applicant is accountable for his actions and should be given the chance to change his character.

    ·Character reference dated 21 August 2023 from Nirmal Oli, member of Amadablam Blazers Cricket Club. The letter states they have known the applicant for one year, and attests to the applicant’s strong character. The letter describes the applicant’s commandability, integrity and humility.

    ·Confirmation of Enrolment – Advanced Diploma of Hospitality Management, course commencing on 11 September 2023 and ending on 28 July 2024.

    ·Conditional release order dated 30 March 2022. Order expired 29 December 2022.

    ·An email from Sydney District Court dated 28 August 2023 confirming there was no breach of the conditional release order.

    ·Psychologist report by Hurryat Faniad of Logic Lounge Psychology dated 4 September 2023. The report states the applicant’s anger is 0.31 on a scale of 0 to 1, with 1 being the maximum. Mr Faniad states the applicant presents with no mood swings or emotional disturbances and is able to regulate his emotions effectively. Mr Faniad is confident the applicant will continue to be committed to his family, workplace and people around him with no potential safety risks to anyone.

    ·Tax invoice issued by Side By Side counselling on 4 September 2023 for anger management course, showing a total balance paid of $1,200.

    ·An undated character reference from Tuan Nguyen, the applicant’s colleague at The Gantry. The reference states the applicant’s reputation amongst the staff and management is of a trustworthy, reliable and hardworking individual. The reference attests to the applicant’s character at work and his ability to approach situations with calmness, respect and maturity.

    ·A character reference from Satej Saigaonkar, Executive Chef at Holiday Inn Sydney Airport, dated 1 September 2023. The letter attests to the applicant’s character, dedication and work ethic. It states he has the capacity for introspection, growth and positive change.

    ·A character reference from Bishal Khatri dated 25 August 2023. The referee states they have known the applicant for over 20 years, and the applicant has always been known to them as a person of good character and integrity. The letter states the applicant has a strong support system and is committed to making amends and learning. Further, it states that the applicant will take all necessary steps to ensure he adheres to the law.

    ·A letter from Sam Hanna, counsellor at Side By Side Counselling, dated 4 August 2023. The letter states the applicant began his first session on 4 September 2023 and his last session is expected to be 26 November 2023. The letter also states the applicant demonstrates comprehension of the impact of anger on his behaviour and its repercussions.

    ·A support letter from the applicant’s wife, Sabina Nepal, dated 5 September 2023. Miss Nepal states that it is the applicant’s dream to master his skills as a chef in Australia and build a future filled with promise and prosperity, and his dreams will shatter if his visa is cancelled. The letter attests to the applicant’s passion for culinary arts. Miss Nepal states the applicant feels immense remorse for his actions.

1. The Tribunal wrote to the applicant requesting that he provide evidence of courses in Australia completed and transcripts of courses commenced but not completed. Relevant documents were provided and the representative provided the following overview:

   Thank you for your email in the above matter. We are instructed to submit that the applicant has completed the following registered courses successfully:

   1.       The applicant arrived in Sydney on 26 June 2018.

   2.       He came to study Diploma of Accounting and Advance Diploma of Accounting courses. He has completed Diploma of Accounting on 5 January 2020.

   3.       While he was studying Advanced Diploma of Accounting, he wanted to study Graduate Diploma of Accounting and applied for this course and received a COE.

   4.       Unfortunately, he couldn’t complete Advanced Diploma of Accounting course because the Covid-19 Pandemic was at the peak at that time and his education provider was still working on introducing online classes. At the same time, he lost his grandmother in Nepal due to Covid-19 Pandemic. He was emotionally very close to her and therefore, he needed some time to recover from this psychological trauma.

   5.       He was working in a commercial kitchen since his arrival in Sydney and he gained some knowledge and skills from work. He liked this profession and therefore, later he choose to study Commercial Cookery and Hospitality Management courses.

   1. [sic]  He started studying these courses and from 8 March 2021 and completed all these courses on 30 March 2023.

   Please find attached the Completion letter, Qualification and Transcript for the for following courses.

   A.       Diploma of Accounting from 9 July 2018 to 5 January 2020

   B.       Certificate IV in Commercial Cookery from 8 March 2021 to 9 October 2022

   C.       Diploma of Hospitality Management from 31 October 2022 to 30 April 2023

   Also attached is the Course Progress Report of Advanced Diploma of Accounting. He withdrew this course later.

2. Relevant evidence as indicated above was provided. The transcript provided of the Advanced Diploma of Accounting shows that the applicant was deemed competent in two courses undertaken listed on the transcript.

3. The following is noted from the submission provided to the Tribunal on behalf of the applicant. The submission indicates that the visa was cancelled on the basis that the applicant was a risk to community and that there has not yet been a conviction. The Tribunal notes that this is incorrect and that the ground of cancellation was that the applicant had been convicted of an offence. In the hearing, the representative indicated that this was an error.

4. The submission indicates that the applicant was not represented when the charges were heard by the Local Court. The applicant indicates that the offences occurred under the influence of alcohol. The applicant has paid the fine and completed the good behaviour order without any breach. It is indicated that the offence occurred when the applicant was grabbed from behind and he tried to resist. The person grabbing the applicant was a police officer. Those that ran away were not charged. The applicant was naïve and honest and charged simply because he accepted his mistake and complied at all times with the prosecutors.

5. The submission indicates that the fact the applicant was released unconditionally means that the Magistrate determined that he was not a threat to the health or safety of any segment of Australia. It is submitted that what happened was a one-off incident and the Tribunal should take into account the fact of the applicant being in a foreign country and the circumstances potentially happening to anyone. It is indicated that the applicant does not pose a threat to the Australian community. The applicant should not be punished again by the cancellation of the visa.

6. It is indicated that the applicant and his wife continue to live together and have a common goal to complete studies in Australia. They wish to return to Nepal where the applicant will start his career as a chef.

7. The submission indicates the Department allowed the applicant to continue his studies. He successfully completed his Certificate IV and Diploma of Hospitality courses. The applicant now wants to complete an Advanced Diploma of Hospitality Management that he is now enrolled in.

8. It is submitted that the applicant is remorseful and will never engage in such activity in the future. It is submitted that hardship would be suffered by the applicant’s partner if the applicant is removed from Australia. The applicant has no prior criminal convictions recorded in Australia or Nepal. He honoured the conditions on his bail. He has been cooperative with the Department, Tribunal and court.

9. It is submitted that the applicant is undertaking an anger management course. The applicant has attended sessions with a clinical psychologist and requests more time to provide the report to the Tribunal. The applicant plays for a cricket club and has provided a character reference from friends at the club and his workplace which certify his good character.

10. In terms of hardship, it is indicated that the applicant’s parents have spent $47,000 on his study coming from a poor country. If the applicant’s visa is cancelled, the dream of his whole family will be shattered.

11. In the hearing, the Tribunal put to the applicant information in the Police Facts Sheet detailing the allegations against the applicant leading to the charges pursuant to the procedural requirement of s 359AA of the Act. The Tribunal indicated that the information was relevant because it demonstrates violent and antisocial conduct including seriously assaulting an individual and resisting arrest. The allegations and the Facts Sheet indicate the applicant being the initiator of the punch to an individual before police intercession. The Tribunal indicated that the consequence of relying on this information and the conviction could cause the Tribunal to consider that the applicant has acted in such a way as to justify removal of his entitlement to be in Australia with the privilege of holding a student visa.

12. The Tribunal indicated that it would consider in response all of the written submissions and statements that have been provided to date on his behalf explaining the circumstances and claimed extenuating factors. The applicant was given the opportunity to provide any further response orally or later in writing.

13. The applicant, after consulting with his representative, provided a response orally. He talked about the circumstances leading to the convictions and that the individual that he punched first pushed the applicant causing him to respond with the punch. He indicated that this individual had initially been in the restaurant he and his friends had been in at the pub they attended. The applicant indicated that this individual was obnoxious and was making derogatory comments. He indicated that the individual left the pub before he and his friends did. The applicant indicated that he and his friends left the pub and this individual was sitting on the street about 100 metres from the entrance to the pub in the direction in which he and his friends were walking to get to the bus. He indicated that as they approached this individual he began to make derogatory comments about the applicant’s mother. The applicant indicates that he was drunk and therefore his memory is not entirely clear, but he recalls the individual standing up and the altercation continuing and then the applicant punching the individual after he was pushed.

14. The Tribunal put to the applicant that the Facts Sheet makes allegations indicating that the applicant ran towards the individual and hit him with a closed fist to the back of his head. This does not indicate a provocation from the individual in terms of pushing the applicant.

15. The applicant in giving evidence indicated that when he was arrested the police officer who grabbed the applicant resulting in the resisting arrest conviction had a body camera which shows the applicant punching the individual. The applicant was shown the video by police. The Tribunal asked the applicant to indicate what the video showed leading up to the applicant punching the individual, noting that it might corroborate that the applicant was provoked by the individual pushing him. In response, the applicant indicates that the video only starts at the point where the applicant punches the individual.

16. While the Tribunal is inclined to accept that there was verbal provocation for the attack, it doubts the truth of the applicant’s claims that he was pushed or punched causing the applicant to punch the individual. This in part is as a result of the Facts Sheet alleging that the applicant ran up to the victim punching him with a closed fist to the back of the head and not indicating prior physical provocation by the victim. Concerns also arise as a result of the video footage not showing the applicant being physically provoked and the Tribunal has doubts that the video would have started only at the very point of the applicant punching the victim.

17. The Tribunal is inclined to accept the evidence of the applicant that he did not know that the person grabbing him from behind was a police officer, resulting in the applicant moving his body with force to be released from the grip of the police officer and leading to the convictions of assaulting a police officer and resisting arrest.

18. In the hearing, the applicant indicated that he ran away and about 300 metres later encountered a policeman who had been informed via walkie-talkie of the encounter involving the applicant. The applicant indicated that he stopped and complied with the directions of the police officer.

19. In terms of discretionary factors in the applicant’s favour, most issues apart from the circumstances leading to the convictions are in his favour. The Tribunal accepts that the applicant has made on the whole good progress in his studies in Australia and in the course of his time in Australia has changed his study direction from accounting to hospitality. In the circumstances of the applicant changing his study direction, the Tribunal does not draw an adverse inference from the applicant withdrawing from the Advanced Diploma of Accounting.

20. The Tribunal accepts based on both the evidence of the applicant in the hearing and the psychologist report that the applicant is of low risk to the community in Australia.

21. In terms of hardship if the visa remains cancelled, the key hardship to the applicant as confirmed in the hearing is his inability to complete the Advanced Diploma of Hospitality, which he indicated in the hearing would take a year to complete. The applicant indicated that after that he and his wife would return to Nepal where he wishes to open a restaurant.

22. The Tribunal indicated to the applicant that it accepts some degree of hardship in this respect but that this is potentially ameliorated by the fact that during his time in Australia since 2018 the applicant has successfully obtained three academic qualifications, one in accounting and two in his now chosen field of hospitality. In this respect, while there might be some hardship in not being able to complete the Advanced Diploma of Hospitality, this is offset by the three courses he has successfully completed in Australia. The Tribunal also indicated that the applicant has and is obtaining relevant work experience in Australia. In the hearing, the applicant confirmed references as to his work, and that he is currently working as a chef.

23. In response, the applicant indicated that there is more he needs to learn in Australia in terms of his study and experience, in terms of gaining the education and skills to be able to open a restaurant in Nepal.

24. The Tribunal accepts some truth in this and accepts hardship to the applicant if he is not able to complete his Advanced Diploma of Hospitality. However, the Tribunal remains of the view that the degree of hardship is offset by the successful study and work experience that the applicant has already obtained in Australia. However, the Tribunal does accept there will be more significant hardship if there were other avenues wished to be taken to seek a visa to stay in Australia on a more permanent basis when his study ends.

25. The applicant’s wife gave evidence in the hearing that she arrived in Australia on a dependent visa in May 2022. She indicated that she has been working full-time as a chef in Australia. The applicant’s wife was asked as to the hardship that will be faced if the visa remains cancelled. She responded emotionally indicating that it will thwart the desire that she and the applicant have to continue to study and work in Australia, albeit that they have an intention to return to Nepal when the applicant completes his Advanced Diploma of Hospitality.

26. The Tribunal takes into account in the applicant’s favour the numerous character and work references provided that attest to his character and good conduct as a person and employee. As indicated, the Tribunal accepts that the applicant is of low risk to the community. The Tribunal also accepts submissions that this is a first-time offence for the applicant. The Tribunal also considers against exercising its discretion to cancel the visa that there is hardship to both the applicant and his wife in terms of not being able to remain in Australia for the next year to enable the applicant to complete his studies and gain more work experience, and in relation to the applicant’s wife not being able to continue to work in Australia. The Tribunal also considers hardship in terms of any desire that the applicants may have if they seek to stay in Australia on a longer-term basis.

27. As put to the applicant at the hearing, the convictions are of some degree of seriousness, particularly in terms of perpetrating an assault causing actual bodily harm. The Tribunal for the reasons given has doubts that the applicant was physically provoked leading to the punch but is inclined to accept that the applicant was verbally provoked. The Tribunal accepts alcohol as contributing towards what happened but the applicant needs to take responsibility for his alcohol use.

28. The Tribunal accepts nevertheless that what occurred was an act that was uncharacteristic of the applicant and that the applicant has not otherwise been in trouble with the law in either Australia or Nepal. In the applicant’s favour is his positive study and work history in Australia and the many character references as to his good character.

29. On balance, and it is a finely tilted balance given the nature of the convictions, the Tribunal determines that matters adverse to the applicant, namely the circumstances leading to the convictions, are outweighed by the hardship that the applicant and his wife would face if the visa remains cancelled, the applicant’s good study history, the character references on the applicant’s behalf and the Tribunal’s view that the offence was an uncharacteristic and one‑off act provoked by offensive comments. The Tribunal considers that the sentence and fine that was imposed in relation to the convictions, the uncertainty to both the applicant and his wife as to their status in Australia and the cost of having to hire a lawyer to seek to defend and seek a review of the visa cancellation are punishment appropriate to what has occurred and that to cancel the visa would impose a significant additional punishment not warranted in the circumstances.

30. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

31. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 500 (Student) visa.

32. The Tribunal has no jurisdiction with respect to the second named applicant.

    David McCulloch
    Member