Naqvi (Migration)

[2022] AATA 469

Naqvi (Migration) [2022] AATA 469 (8 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Syed Muhammad Ahad Ali Naqvi

REPRESENTATIVE:  Mr Imran Nawaz Warraich, HUK Legal Services Pty Ltd

CASE NUMBER:  2003833

HOME AFFAIRS REFERENCE(S):          BCC2019/5412757

MEMBER:Michael Ison

DATE:8 March 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 08 March 2022 at 4:39pm

CATCHWORDS
MIGRATION – cancellation – Student (Subclass TU) visa – Subclass 500 (Student) – criminal conviction – discretion to cancel visa – study history – no study rights while holding bridging visa – single out-of-character offence with no other harm or damage – guilty plea and genuine insight and remorse –  fine, disqualification from driving and impoundment of car – no further infringements or offences – financial and emotional hardship and legal consequences if visa cancelled – mental health diagnosis and ongoing treatment – limited treatment available in home country – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(g), 375A, 376
Migration Regulations 1994 (Cth), r 2.43(1)(oa)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 21 February 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116 of the Migration Act 1958 (the Act).

   Background

2. The applicant in this review is Mr Syed Muhammad Ahad Ali Naqvi, who is a 25-year-old Pakistan national. Mr Naqvi is referred to as the applicant in these reasons for decision. The Tribunal discussed the applicant’s immigration history in Australia with the applicant, which may be summarised as follows.

3. The applicant was granted a Student (Subclass 500) visa on 29 May 2017 and first arrived in Australia as the holder of that Student visa on 5 June 2017. The applicant’s Student visa was valid to 10 September 2020 and he had enrolled in a package of courses, commencing with a three month Tertiary Access Program, a Diploma of Science (Computing) and a Bachelor of Information Technology at Edith Cowan University in Western Australia.

4. On 21 February 2020 the applicant’s Student visa was cancelled under s 116(1)(g) and reg 2.43(1)(oa).

5. The applicant was granted a Bridging E (Subclass 050) visa on 20 April 2020, which he continues to hold at the time of this decision. The applicant's Bridging E visa has visa conditions 8101 (No work), 8506 (Notify new address), 8207 (No study) and 8564 (Must not engage in criminal conduct) from Schedule 8 of the Migration Regulations 1994 (Cth) (the Regulations) attached.

   The primary decision

6. The applicant provided the Tribunal with a copy of the primary decision.

7. The delegate cancelled the visa under s 116(1)(g) and reg 2.43(1)(oa) on the basis that the applicant was convicted of a criminal offence in Western Australia and the delegate found that the discretionary considerations overall weighed in favour of, rather than against, the cancellation of the applicant’s visa.

8. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

   Tribunal hearing

9. The applicant appeared before the Tribunal on 25 February 2022 to give evidence and present arguments, by video.

10. The applicant was represented in relation to the review by the applicant’s migration lawyer, Mr Imran Nawaz Warraich of HUK Legal Services Pty Ltd. Mr Warraich participated in the Tribunal hearing by video and is referred to in these reasons as the applicant’s representative or the representative.

11. 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 also 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 the representative toward the end of the Tribunal hearing on any matter they considered relevant to the applicant’s review.

    Certificates issued by the delegate under section 375A and section 376 of the Act

12. The Tribunal wrote to inform the applicant on 27 January 2022 that delegates of the Minister had issued two non-disclosure certificates to the Tribunal pursuant to ss 375A and 376 of the Act.

13. The certificate issued pursuant to s 375A of the Act was dated 6 March 2020 and purported to apply to four documents on the Department file. The Tribunal determined the certificate to be invalid and not binding upon it because the certificate had not been properly executed by the delegate who purported to issue it.

14. The certificate issued pursuant to s 376 of the Act was dated 19 October 2020 and purported to apply to one document on the Department file.

15. The Tribunal expressed a preliminary view in its letter to the applicant that the s 376 certificate was validly issued and bound the Tribunal. The Tribunal’s letter included a copy of both certificates and invited the applicant to comment upon them, including their validity.

16. The Tribunal did not receive any written submissions in relation to the certificates.

17. At the commencement of the Tribunal hearing on 25 February 2022 the Tribunal asked the representative if he had any oral submissions in relation to the certificates and the representative indicated he did not.

18. For the reasons set out in the Tribunal’s letter dated 27 January 2022, the Tribunal did not consider any of the information that was contained in the documents the s 375A certificate purported to apply to or in the document that the s 376 certificate applied to, would be the reason, or a part of the reason, for the Tribunal to affirm the decision of the delegate of the Minister that is under review. The Tribunal did not have further regard to that information during this review.

    Pre-hearing submissions

19. On 25 February 2022 the Tribunal received a submission on behalf of the applicant which attached documents including a:

    ·three-page written statement from the representative, dated 24 February 2022;

    ·support letter from a Consultant Psychiatrist Dr Haroon Riaz, dated 18 February 2022;

    ·support letter from a Clinical Psychologist Dr Jason Brown, dated 17 February 2022; and

    ·copy of the applicant’s family registration certificate issued by National Database and Registration Authority, Government of Pakistan, date of issue: 17 December 2016.

20. The Tribunal also received 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

21. On 3 March 2022 the Tribunal received a submission on behalf of the applicant which attached documents including:

    ·a one-page written statement from the representative, dated 3 March 2022;

    ·a statement of attainment dated 16 March 2020 from the Victorian Institute of Technology Pty Ltd stating the applicant has completed 13 units of a Diploma of Information Technology Networking;

    ·the applicant’s academic transcript for a Diploma of Science (Computing/IT), issued by Edith Cowan College, reprinted: 14 June 2019;

    ·the applicant’s Commonwealth bank statements from 31 December 2019 to 22 February 2022; and

    ·a more detailed report in letter form from the applicant’s psychiatrist, Dr Haroon Riaz, dated 3 March 2022.

    Tribunal decision

22. The Tribunal has had regard to the oral evidence of the applicant, all of the information in the oral and written submissions provided to the Tribunal on the applicant’s behalf and to the information in the Tribunal’s file and the Department’s file provided to the Tribunal.  The Department’s file included the Notice of Intention to Consider Cancellation of a visa, the applicant’s response to that Notice, the primary decision and associated correspondence and information.

23. 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

24. 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?

    Section 116(1)(g) - prescribed ground

25. A visa may be cancelled under s 116(1)(g) of the Act 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 Regulations. In the present case, the ground in reg 2.43(1)(oa) is relevant.

26. Regulation 2.43(1)(oa) provides:

    (1)For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are the following:           …

    (oa)  in the case of the holder of a temporary visa other than a Subclass 050 Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa - that the Minister is satisfied that the holder 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));

27. The applicant does not contest that there is a ground for the cancellation of his visa.

28. During the Tribunal hearing the applicant confirmed the following:

    ·At 12.35am on Friday 28 September 2018 he was detected travelling at 140 kilometres per hour (kmh) and was alleged by Western Australia Police to have been travelling at 138kmh in an area where the speed limit was 70kmh;

    ·The applicant was subsequently charged with one offence of driving at a reckless speed 45 kmh or more above the speed limit;

    ·The applicant pleaded guilty to that offence; and

    ·On 7 November 2018 in the Midland Magistrates Court the applicant was convicted of the offence he pleaded guilty too, was fined AUD1,400, was disqualified from driving for six months and his vehicle was impounded for one month.

29. The Tribunal accepts this evidence. The Tribunal finds that on 7 November 2018 the applicant was convicted of a criminal offence in Western Australia.

30. For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(g) and reg 2.43(1)(ao) 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

31. 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 Procedural Instruction formerly known as the Department’s Procedures Advice Manual or PAM3 ‘General visa cancellation powers’.

32. The Tribunal has considered all of the applicant’s circumstances. The headings from the Department’s Procedural Instruction are used for convenience only.

    The purpose of the applicant’s travel to and stay in Australia, including whether the applicant has a compelling need to or remain in Australia

33. The applicant’s purpose in coming to Australia was to study information technology. The applicant told the Tribunal he has not completed his studies in Australia and would like to do so.

34. The applicant claims to have completed a three-month Tertiary Access Program at Edith Cowan University, but did not provide any documentary evidence to the Tribunal to support this claim. As the applicant progressed to commence his Diploma studies, the Tribunal accepts it is likely he completed the initial short-term course.

35. After the Tribunal hearing the applicant provided an academic transcript to the Tribunal that confirmed he completed four units of a Diploma of Science (Computing/IT) at Edith Cowan University. The Tribunal accepts this evidence.

36. The applicant then moved to Melbourne, Victoria and enrolled in a Diploma of Information Technology Networking and a Bachelor of Information Technology at the Victorian Institute of Technology (VIT). The applicant claimed during the Tribunal hearing that he had completed “80 per cent” of the Diploma of Information Technology Networking when his visa was cancelled. The applicant provided a Statement of Attainment to the Tribunal after the Tribunal hearing. That statement confirmed the applicant has completed 13 units of that Diploma course at VIT as at 16 March 2020. Publicly available information on the VIT internet website indicates 16 units must be completed to obtain the Diploma qualification. The Tribunal accepts the evidence before it that the applicant has completed 80 per cent of the Diploma of Information Technology Networking course. 

37. The applicant told the Tribunal he had not applied for a Bridging E visa without condition 8207 (no study) attached because at the time he applied for the Bridging E visa he had a detailed discussion with Department officers and asked them to allow him to study (and work) but the officers told him he would not be granted study (or work) rights until after his Tribunal review.

38. The delegate found the applicant could potentially complete his studies in Pakistan or another country such as the United States of America or the United Kingdom. The applicant expressed concern to the Tribunal that having not completed his Diploma of Information Technology Networking he may not get any recognition for those studies given it is over two years since he last studied. The applicant raised with the Tribunal, when discussing other discretionary considerations, that he is concerned having been convicted of a criminal offence in Australia may impact his ability to study overseas. The Tribunal accepts both concerns may be an issue for the applicant in the future but finds those concerns are speculative as each depends on other factors that are not known at the time of this decision.

39. The Tribunal accepts the applicant’s evidence of the importance to him of completing his study in Australia. However, the applicant’s substantive visa is a temporary visa provided to international students to enable them to come to Australia temporarily, study here and gain Australian qualifications and then return home to their or another country. It is not obvious to the Tribunal that the applicant could not complete his studies in Pakistan. Even if this were not the case, as a Student visa is a temporary visa the Tribunal finds that the applicant does not have a compelling need to remain in Australia, even though he has not completed the studies he has enrolled in.

40. The Tribunal finds that this consideration weighs in support of the cancellation of the applicant’s visa and the Tribunal gives this consideration some weight.

    The extent of the applicant’s compliance with their visa conditions

41. The applicant has held his substantive Student visa and one Bridging E visa in his time in Australia.

42. The applicant told the Tribunal that he has not been found by the Department to be in breach of a condition of either visa. There is no evidence before the Tribunal the applicant has been found to be in breach of a condition of his Student visa or his Bridging E visa.

43. The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives it some weight.

    The degree of hardship that cancellation may cause (financial, psychological, emotional or other hardship) to the applicant and any family members

44. The applicant told the Tribunal he is an only child and his father passed away when the applicant was approximately six years of age. The applicant told the Tribunal his studies have been paid for by his mother who earns an income in Pakistan as a landlord and he is her only hope for a better future. The applicant told the Tribunal he moved back to Perth from Melbourne in early 2020 where he had the support of friends, including initially the provision of rent-free accommodation.

45. The applicant’s evidence is he will suffer emotionally if his visa is cancelled as he will not have gained any qualification in Australia and will have disappointed his mother, who has made significant sacrifices for him. The applicant feels the money spent on his course fees to date will have been wasted and this will cause significant financial hardship for him and his mother.

46. The applicant also told the Tribunal he does not know what he would do if he returned to Pakistan without any qualifications and he feels he would be returning as a failure and having to start over and occur additional cost to study again and his mother would be ashamed of him and their relationship would not be the same as it was before his visa was cancelled.

47. The applicant also gave evidence that in his community in Pakistan everyone talks about each other’s business and would know he did not complete his studies in Australia and he would feel ashamed in the community.

48. The applicant told the Tribunal his mother has diabetes and the cancellation of his visa has caused her great sadness and disappointment in him, although he has asked for and received her forgiveness and promised her he will not repeat the behaviour that led to his criminal conviction.

49. The applicant’s evidence is that when his visa was cancelled he became depressed and went to see a doctor who referred him to a psychiatrist, Dr Haroon Riaz in a suburb of Perth, Western Australia. Dr Riaz provided letters of support for the applicant dated 18 February 2022 and after the Tribunal hearing dated 3 March 2022. What those letters reveal is:

    ·The applicant was first referred to Dr Riaz on 5 May 2020 and initially saw Dr Riaz every three weeks and has seen Dr Riaz quarterly since December 2020;

    ·Dr Riaz provided a statement of account showing he has seen the applicant 11 times including the initial consultation and the applicant has continued to attend the quarterly sessions, including most recently on 3 March 2022;

    ·The sessions with Dr Riaz have cost the applicant AUD3,300 to date;

    ·Dr Riaz used the Diagnostic and Statistical Manual of Mental Disorders 5^th edition of the American Psychiatric Association, known as DSM V or DSM 5, to professionally assess the applicant and diagnosed the applicant as having Attention Deficit Hyperactivity Disorder (ADHD), depression and as experiencing social anxiety;

    ·Dr Riaz has treated the applicant with various combinations of medications and the applicant has responded well to his current regime of Vyvanse, Ritalin and Prozac and has “shown significant improvement in his mental state and health”; and

    ·Dr Riaz referred the applicant for regular psychological counselling to support his psychiatric treatment.

50. The applicant provided a letter from Dr Jason Brown, clinical psychologist, dated 17 February 2022 to whom he was referred by Dr Riaz in December 2020. Dr Brown stated:

    I have had the pleasure of doing therapy work with Syed since 10 December 2020 after he was referred to me by his Consultant Psychiatrist to learn about how to better manage his ADHD. I have been seeing him in collaboration with Dr Haroon Riaz, a Consultant Psychiatrist at Abbotsford Psychiatry. Dr Riaz has been seeing Syed for a much longer period than I have.

    It was my suggestion to Syed that the Courts could benefit from developing some awareness of his mental health status and therapy involvement. Much of the work has been around educating Syed about what adult ADHD (which was diagnosed in 2020) is and how it can be better managed. Indeed, he continues to experience a great deal of shame pertaining to the ‘out of character’ driving behaviour which got him into his current predicament with the Australian Justice system, and this has contributed to some anxiety and mood difficulties, which in turn have also been a focus of therapy.

    Syed is an introspective person (hence his decision to seek help from Dr Riaz and myself despite having limited funds) who despite an often difficult and at times traumatic background in Pakistan, is very keen to ‘self-develop.’ Indeed, Syed appreciates that having the opportunity to come and study in Australia was a significant achievement and a great opportunity. Should he be forced to return to Pakistan, it is likely that his mental health would deteriorate as there is a lack of access to mental health treatments for disorders, including adult ADHD.

    I would like to emphasise to the Courts that Syed is responding very well to medication and therapy. I would also like to underscore the fact that in 2018 when the driving offence occurred, Syed’s mental health was at a markedly poorer level in part due to various interpersonal factors. His mental health is indeed, much improved from that time. In my view, it would be a great shame if this ‘one-off driving’ incident (indeed, there is no history of other driving/criminal offences) interfered with his ability to study and self-develop in Australia. In my view, he has the potential to make a lasting contribution to this country.

1. The Tribunal accepts this evidence that the applicant has been diagnosed as having adult ADHD and that he has progressed well with his awareness and management of that condition since his diagnosis and ongoing treatment.

2. The applicant told the Tribunal about his daily regime of medicine and that he is observant of taking all medicine prescribed to him in the manner prescribed. The Tribunal also accepts this evidence.

3. The applicant told the Tribunal that he would not be able to receive the same level of treatment in Pakistan for his ADHD as he does in Australia, including that some of his medications are either not available or much more difficult to access than in Australia. The applicant claims that if his visa was cancelled his reduced access to medical treatment for his ADHD is another form of hardship he would experience. The Tribunal accepts this evidence.

4. The Tribunal finds that the applicant would suffer significant emotional, social and psychological hardship, including through not being able to access the same level of psychiatric and psychological treatment in Pakistan that he receives in Australia for his ADHD diagnosis, if his visa is cancelled.

5. The Tribunal also finds the applicant and his mother would experience financial hardship if the applicant’s visa was cancelled through the applicant returning to Pakistan without Australian qualifications causing them both to feel the significant funds spent to date on the applicant’s courses in Australia were ‘wasted’ and the applicant also having reduced career options and income earning potential in Pakistan.

6. The applicant told the Tribunal he does not have a partner and that no-one else would suffer hardship is his visa was cancelled.

7. The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives it significant weight.

   The circumstances in which the ground for cancellation arose. Were there any extenuating circumstances beyond the applicant’s control that led to the ground for cancellation existing? As a general rule, a visa should not be cancelled if the circumstances in which the ground for cancellation arose were beyond the applicant’s control.

8. The circumstances that led to the cancellation of the applicant’s visa are a single speeding related criminal offence that occurred on 28 September 2018 and for which he was convicted on 7 November 2018, having pleaded guilty to that offence at an early stage.

9. The applicant did not seek to excuse his behaviour. He gave a straightforward account of the offence which was that he was travelling home in an urban area late at night on a straight stretch for five or six kilometres of an empty four lane road and put his foot down (on the accelerator) and did not realise he was travelling as fast as he was and has since asked himself on a daily basis since, why he did that, because he is usually careful with speeding.

10. The applicant does not claim that any of the circumstances that led to the cancellation of his visa were outside of his control and described his speeding on the night of 28 September 2018 as “an act of stupidity”.

11. The Tribunal finds that this consideration weighs in support of the cancellation of the applicant’s visa and the Tribunal gives this consideration considerable weight.

    The past and present behaviour of the applicant towards the Department (including whether they have been truthful and cooperative)

12. The evidence before the Tribunal is that the applicant has been co-operative towards the Department and participated in the process leading to the cancellation of his visa, including by responding to the Notice of Intention to Consider Cancellation of a visa in a timely manner. There is no evidence before the Tribunal of the Department having any adverse dealings with or having made any adverse findings (this cancellation aside) against the applicant.

13. The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives this consideration some weight.

    Whether there are persons in Australia whose visas would, or may, be cancelled under s.140 of the Act

14. The applicant told the Tribunal that there is no-one dependent upon his visa. The Tribunal accepts this evidence.

15. The Tribunal finds that this consideration is neutral and weighs neither in support of nor against the cancellation of the applicant’s visa.

    Whether there are mandatory legal consequences to a cancellation decision such as whether cancellation would result in the applicant becoming an unlawful non-citizen and liable to detention and removal or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention

16. The Tribunal explained to the applicant in detail the mandatory legal consequences that would flow from the cancellation of his visa. These consequences include the applicant would become an unlawful non-citizen under s.189 of the Act and could be detained and deported under s.190 of the Act. Cancellation of the applicant’s visa would also mean that s.48 of the Act would apply to the applicant to prevent the applicant from applying for some visas while the applicant remains in Australia.

17. Because the applicant’s visa, if cancelled, would be cancelled under s.116 of the Act it also means the applicant would become affected by what is known under the Act as a “risk factor”. The effect of being affected by a risk factor is the applicant would be precluded under Public Interest Criteria 4013 in Schedule 4 of the Regulations from being able to apply for another visa to return to Australia for a specified period, currently three years, unless there were relevant compassionate or compelling circumstances justifying the grant of a visa within the specified period.

18. The Tribunal discussed with the applicant that normally this consideration weighs against the cancellation of a visa but in circumstances where a visa holder has committed a criminal offence the Tribunal could find that it is an intended outcome of the migration law that their visa be cancelled. The Tribunal explained to the applicant this could lead the Tribunal to find that this consideration weighs in support of the cancellation of the applicant’s visa.

19. The applicant responded that he accepts having been convicted of a criminal offence is pretty bad and he is relieved that no-one was hurt and no property was damaged and he has learned his lesson and will not repeat his behaviour of 28 September 2018. The applicant indicated he expects that having a criminal record he may not be able to travel from Pakistan to some countries and such consequences are a major issue for him.

20. The Tribunal finds that in the applicant’s circumstances this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives this consideration some weight.

    Whether Australia has obligations under relevant international agreements including non-refoulement obligations, family unity obligations and the best interests of any children in Australia as a primary consideration, that would be breached as a result of the visa cancellation

21. The applicant gave evidence he does not have any children and there are no impediments to him returning to Pakistan, current COVID-19 global pandemic travel restrictions aside.

22. The Tribunal finds that this consideration is neutral and weighs neither in support of nor against the cancellation of the applicant’s visa.

    If the applicant holds a permanent visa, whether the applicant has strong family, business or other ties in Australia

23. The applicant’s visa is a temporary visa.

24. The Tribunal finds that this consideration is neutral and weighs neither in support of nor against the cancellation of the applicant’s visa.

    Any other relevant matter

25. The applicant gave detailed evidence about the difference being diagnosed with and receiving effective and ongoing treatment for ADHD has made to his life and who he is now as a person compared to his mental health and who he was in 2018. The Tribunal was impressed that the applicant had maintained his regular appointments with his treating psychiatrist and treating psychologist since May 2020 and December 2020 respectively, particularly as his treatment has occurred during the emergence of the COVID-19 global pandemic.

26. The Tribunal notes the applicant has lived in Western Australia throughout the period of his treatment for ADHD and that Western Australia has had the least restrictive response to the COVID-19 global pandemic in terms of constraints on the movement and gathering of people and operation of businesses of arguably any State or Territory in Australia. Still, the Tribunal gives the applicant considerable credit for maintaining his treatment regime which has occurred at significant cost during a time when the applicant has not been able to work.

27. The applicant exhibited what the Tribunal considered to be genuine insight into and remorse for his offending. This remorse was expressed in terms of the danger his behaviour on 28 September 2018 presented to other road users and the applicant’s acknowledgement of and understanding of the reasons for and importance of respecting road laws in particular and the law generally. The Tribunal found the applicant was able to distinguish this remorse for his offending from his remorse for and the sense of shame he feels for causing his mother distress and for placing at risk his and his mother’s dream of the applicant obtaining Australian qualifications in information technology.

28. The applicant gave evidence to the Tribunal that he resumed driving in 2019 once his licence disqualification period had finished and he has not committed any traffic offences or infringements since the September 2018 offence and has not been charged with or found guilty of any other criminal offence. As there is no evidence to the contrary before the Tribunal, the Tribunal accepts the applicant’s evidence in this regard.

29. The applicant told the Tribunal he struggled with his studies both in Pakistan and early on in Australia and sought help at his initial education provider but was told by a counsellor there he was homesick. The applicant told the Tribunal he now has a series of strategies to manage the symptoms of his ADHD and feels a lot better placed to now successfully complete his studies in Australia. The Tribunal accepts this evidence.

30. The Tribunal finds that the consideration of any other relevant matters weighs against the cancellation of the applicant’s visa and in the applicant’s circumstances the Tribunal gives this consideration considerable weight.

    Conclusion

31. Considering the circumstances as a whole, the Tribunal concludes that the applicant’s Student visa should not be cancelled.

32. The Tribunal finds that the discretionary considerations that weigh against the cancellation of the applicant’s Student visa, including the applicant’s compliance with the conditions of the two visas he has held while in Australia, the degree of hardship cancellation would cause the applicant and his mother, the applicant’s past and present co-operative behaviour toward the Department, the mandatory legal consequences that cancellation would visit upon the applicant and the other relevant matters raised by the applicant and his representative as noted in these reasons for decision, outweigh the considerations that weigh in support of the cancellation of the applicant’s Student visa.

    DECISION

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

    Michael Ison
    Senior Member