Neupane (Migration)

Neupane (Migration) [2021] AATA 1315 (24 February 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Sujan Neupane
CASE NUMBER:  2003351
HOME AFFAIRS REFERENCE(S):          BCC2019/5655771
MEMBER:Michael Ison
DATE:24 February 2021
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 24 February 2021 at 1:11pm
CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – criminal conviction – dangerous driving – considerable emotional hardship – COVID-19 global pandemic – decision under review set aside
LEGISLATION
Crimes Act 1900 (NSW), s.52A(3)(c)
Migration Act 1958, s 116
Migration Regulations 1994 (Cth), r 2.43, Schedule 8
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 19 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 (Cth) (the Act).
Background
The applicant is Mr Sujan Neupane, who is a 22 year old Nepalese national and who is referred to in these reasons for decision as the applicant. The Tribunal discussed the applicant’s immigration history in Australia which may be summarised as follows.
The applicant arrived in Australia on 23 May 2018 as the holder of a Student (Subclass 500) visa to study information technology courses at the Vocational Education and Training Sector level. The applicant completed a Diploma of Information Technology on 12 January 2020 and is currently studying an Advanced Diploma of Computer System Technology.
On 4 May 2019 the applicant had a car accident which resulted in him being charged with four criminal offences on 6 May 2019 and being granted bail.
On 6 November 2019 the applicant pleaded guilty to and was convicted of two counts of dangerous driving occasioning grievous bodily harm contrary to s.52A(3)(c) of the Crimes Act 1900 (NSW). The applicant was sentenced to a Community Correction Order for 18 months subject to a condition not to commit any offences during the order and he was also disqualified from holding a driver’s licence for 18 months. The Community Correction Order and licence disqualification both expire on 5 May 2021.
On 19 February 2020 the applicant’s Student visa was cancelled.
On 11 June 2020 the applicant was granted a Bridging E (Subclass 050) visa that he continues to hold at the time of this decision. The applicant’s Bridging E visa is subject to visa conditions 8104 (Work Limitation), 8401 (Report As Directed), 8506 (Notify New Address), 8510 (Show Valid Passport) and 8564 (Must Not Engage in Criminal Conduct) from Schedule 8 of the Migration Regulations 1994 (Cth) (The Regulations). There are no conditions attached to the applicant’s Bridging E visa limiting his right to study in Australia.
The primary decision
The applicant provided the Tribunal with a copy of the primary decision made by a delegate of the Minister. The delegate cancelled the visa under s.116(1)(g) and r.2.43(1)(oa) on the basis that the applicant is the holder of a temporary visa, being a Student visa, and on 6 November 2019 had been convicted of committing two criminal offences in New South Wales. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the applicant’s visa should be cancelled.
Tribunal hearing
The applicant appeared before the Tribunal on 16 February 2021 by audio-visual link to give evidence and present arguments.
The applicant was represented by a practising lawyer who was also a registered migration agent up until 27 January 2021, when the representative ceased to represent the applicant because the representative had chosen not to renew his registration as a migration agent given from 22 March 2021 practising lawyers who provide migration legal advice will no longer be required to also register as migration agents. The Tribunal discussed this with the applicant who told the Tribunal he was happy to appear by himself at the hearing.
The Tribunal hearing was held during the COVID-19 global pandemic. The Tribunal determined it was reasonable to hold a hearing by audio-visual link, 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 audio-visual link. The Tribunal was satisfied the applicant and the Tribunal could satisfactorily see, hear and understand each other throughout the hearing.
At the commencement of the Tribunal hearing the Tribunal explained to the applicant the determinative issues before the Tribunal, the Tribunal’s role and how the hearing would proceed including that the Tribunal is independent of the Department and is not bound by the delegate’s primary decision. The Tribunal informed the applicant that it would seek submissions from the applicant toward the end of the Tribunal hearing on any matter he considered relevant to his review.
Pre-hearing submissions
On 21 February 2020 the Tribunal received a submission on behalf of the applicant which attached documents including:
·The primary decision dated 19 February 2020;
·The applicant’s 5-page written statement dated 17 January 2020 in relation to response to NOICC issued by the Department;
·The applicant’s 2-page written statement dated 4 November 2019 addressed to the Judge of the court;
·The applicant’s Discharge Referral from Royal Prince Alfred Hospital in New South Wales dated 8 May 2019 (11 pages);
·The bio-data page of the applicant’s current passport;
·A reference letter from the President of Chitwan Samaj Australia incorporated dated 9 January 2020;
·An extract from the online database for decisions of the Local Court in New South Wales showing the outcome of the applicant’s criminal matters at Burwood Local Court on 6 November 2019;
·A reference letter from the founder of Youth for Change Club dated 10 January 2020;
·The applicant’s Transcript of Results for a Diploma of Information Technology from Sydney City College of Management dated 7 January 2020; and
·A Confirmation of Enrolment confirming the applicant has enrolled with Sydney City College of Management for a Diploma of Information Technology and an Advanced Diploma of Computer System Technology dated 4 November 2019.
On 10 February 2021 the Tribunal received a submission from the applicant which attached documents including:
·A 3-page written statement from the applicant dated 9 February 2021;
·A Community Correction Order issued by the Local Court of New South Wales dated 6 November 2019;
·A Facts Sheet issued by New South Wales Police dated 6 May 2019;
·A Reason for Bail Decision by Police Officer document from New South Wales Police dated 6 May 2019;
·A Bail Acknowledgment from New South Wales Police dated 6 May 2019;
·A Notice of Listing and Court Attendance Notice issued by the Local Court of New South Wales dated 27 May 2019;
·A Confirmation of Enrolment in a Diploma of Computer Systems Technology with the course commencing on 13 January 2020 and finishing on 11 July 2021 at a cost of AUD16,500; and
·A letter of Confirmation of Enrolment dated 4 November 2019 confirming the applicant has enrolled with Sydney City College of Management in a Diploma of Information Technology and an Advanced Diploma of Computer System Technology commencing on 14 May 2018 and finishing on 11 July 2021.
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
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
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 r.2.43 of the Regulations. In the present case, the ground in r.2.43(1)(oa) is relevant. 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.
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));
In the applicant’s written submission to the Tribunal dated 9 February 2021, the applicant provided sealed court documents confirming that on 6 November 2019 he was convicted in the Local Court of New South Wales of two criminal offences. The applicant does not contest that there is a ground for the cancellation of his visa.
The Tribunal finds that as the applicant was convicted of two criminal offence against the law of New South Wales on 6 November 2019 the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) and r.2.43(1)(oa) 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
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 Instructions, formerly known as its Procedures Advice Manual or PAM3, ‘General visa cancellation powers’. The Tribunal has used the headings from the Department’s Procedural Instructions for ease of reference only.
At the outset of its consideration of the Tribunal’s discretion, the Tribunal explained to the applicant that it is not the Tribunal’s role to punish the applicant for his criminal offending. The Tribunal noted to the applicant that he has been sentenced by the courts under the criminal law of New South Wales and once he completes that sentence he will be considered to have been appropriately punished for the offences he has been convicted of. Put another way, punishment of the applicant (by the Tribunal) is not a relevant consideration for the Tribunal in this review.
The purpose of the applicant’s travel to and stay in Australia, including whether the applicant has a compelling need to travel to or remain in Australia
The applicant told the Tribunal that the purpose of his travel to Australia was to study. The applicant told the Tribunal that he has continued to progress well in his studies and is on track to complete the Advanced Diploma of Computer System Technology on time on 11 July 2021. The applicant then intends to enrol in a Bachelor of Information Technology as he believes this qualification will assist him to gain employment in Nepal because the applicant is of the view that qualifications from Australian universities are highly regarded in Nepal and he will gain more practical and valuable instruction in Australia than if he studied a similar course in Nepal.
The Tribunal accepts the applicant’s evidence of his circumstances and the importance to him of completing his study in Australia. However, the Tribunal does not accept that this provides a compelling need for the applicant to remain in Australia. The Tribunal accepts the applicant’s evidence that he could study a Bachelor of Information Technology or similar course in Nepal. The Tribunal also notes that a Student visa is a temporary visa intended to grant applicant’s the right to a short-term stay in Australia to study and then return home.
The Tribunal finds that this consideration weighs in support of the cancellation of the applicant’s visa and the Tribunal gives it some weight.
The extent of the applicant’s compliance with their visa conditions
The applicant has held one Student visa and one Bridging E visa in his time in Australia. The applicant told the Tribunal that he has not been found by the Department to be in breach of a condition of either of those visas. There is no evidence to the contrary before the Tribunal and the Tribunal accepts this evidence.
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 may be caused (financial, psychological, emotional or other hardship) to the applicant and any family members
The applicant told the Tribunal that the cancellation of his visa will cause him considerable hardship as it has been his wish to study and work in information technology since he was little and having an Australian degree gives him the best chance of doing this in Nepal.
The applicant told the Tribunal he has been upset since the accident out of concern for the other victims of the accident and also for the impact cancellation of his visa could have on his parents and also on his future.
In a letter to the sentencing Magistrate of the Local Court of New South Wales dated 4 November 2019, the applicant wrote:
I am writing this letter to express my sincere apologies for the accident that happened on Saturday of May 4, 2019 at around 12:40 AM.
…
The news of the accident has traveled back home. My parents together with other relatives are really concerned about me and the people who were involved in the accident.
I am thankful and lucky that no one died in the accident.
My aim is to be an IT professional to be part of most reputed IT Company. My parents are now always worried and not proud of me after the accident. This accident has impacted me adversely on my social and personal life. I am suffering physically and psychologically as a result of this accident.
If the case goes against me, it will have a huge impact on me. I would not be able to show my face to my parents and my relatives, I will not be able to continue my studies to meet the visa requirement. My family’s social life back home will also be affected, the respect that I and my parents were getting will be reduced and they will have to suffer from social threats. I would not like to be a bad example for anybody.
I am extremely sorry to all the people who were injured in the accident. I am not a person of such character to cause such an accident knowingly. I have been a good person generally and compassionate on helping people in need. I have also volunteered in lot Nepalese community events to raise money for orphanage in Nepal.
The applicant also provided character references from Mr Chhabi Sapkota and Mr Bijay Pokharel, referred to in paragraph 13 of these reasons, attesting to their view of the applicant’s general good character in the time they have known the applicant and the impact cancellation of the applicant’s visa would have upon him.
The applicant also explained to the Tribunal that the cancellation of his visa would cause his parents considerable emotional hardship. The applicant’s evidence is his parents have supported him financially in Australia after he was an excellent student in Nepal. The applicant also told the Tribunal his parents have been offering him emotional support since the accident and have also been worried for the other victims of the accident.
The Tribunal accepts the applicant’s evidence that the cancellation of the applicant’s visa would cause the applicant considerable hardship in terms of curtailing his study in Australia, affecting his career plans and also causing him to feel he has let down his parents who have supported his studies in Australia financially and the applicant emotionally.
The Tribunal accepts the applicant’s evidence that the cancellation of the applicant’s visa would cause his parents considerable emotional hardship and also financial hardship in the sense that they may perceive the money they have spent on the applicant’s education has not resulted in him achieving the level of qualifications they expected and that this may adversely impact the applicant’s ability to achieve his career plans in Nepal.
The applicant’s evidence is he has an older sister in Nepal and also an uncle and cousin living in Australia. The applicant did not indicate his sister or relatives in Australia would suffer any hardship if his visa is cancelled.
The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives it considerable weight.
The circumstances in which the ground for cancellation arose. Were the circumstances in which the ground for cancellation arose was beyond the applicant’s control?
The circumstances in which the ground for cancellation arose are set out in New South Wales police and prosecution documents provided by the applicant to the Tribunal.
The circumstances of the applicant’s criminal offending are set out in full in a four page New South Wales Police document titled ‘FACTS SHEET’ and dated 6 May 2019. In summary, the circumstances are:
·The applicant was driving in a westerly direction along Parramatta Road, Haberfield with a passenger at 12.40am on Saturday 4 May 2019;
·It was raining and the road was wet;
·The applicant was travelling at between 50kmh and 60kmh with the prevailing speed limit being 60kmh;
·The part of Parramatta Road the applicant was driving along is three lanes in both directions divided by a raised median kerb;
·The accident was recorded on dash-cam footage of a car travelling behind the applicant. According to New South Wales Police:
It shows the accused’s vehicle driving in lane 1 of 3, slowly drifting over and it appears the vehicle is under control in the sense that it is driving forward in a straight line. The accused’s vehicle continue in a slow drift, mounting the median kerb, entering lane 3 of 3 eastbound and subsequently colliding with the Toyota Yaris. The accused was drifting for approximately 7 seconds prior to the collision. (sic)
·After mounting the median kerb the applicant’s vehicle collided in an “offset head-on impact” with a second vehicle (the Toyota Yaris) causing the Toyota Yaris to rotate clockwise and collide with a third vehicle;
·The applicant suffered a fractured right tibia (shinbone) and patella (kneecap) requiring surgery;
·The applicant’s passenger required surgery immediately following the accident for abdominal injuries which included a perforated bowel;
·The driver of the second vehicle (the Toyota Yaris) required immediate surgery following the accident for abdominal injuries which included a reduction of the bowel and also for a clavical fracture (broken collarbone);
·The driver of the third vehicle was hospitalised following the accident requiring surgery for a deep laceration to his right arm and to repair the rotator cuff of his right shoulder; and
·New South Wales Police recorded the applicant’s post accident explanation when interviewed in hospital as:
The accused advised that he was driving in the middle lane and attempted to move into the right lane. When this happened the car started to slide, as the road was wet. The vehicle continued over the median kerb and the accused became unconscious. The accused was cautioned and further questioning revealed the accused attempted to brake prior to driving over the median kerb. This allegedly caused the car to slide.

In his written statement to the Tribunal dated 9 February 2021 the applicant explained the circumstances of his offending as follows:
I was under the speed limit. The road was wet due to rain. The car was skidded when I was trying to change lane. It was totally un-intentional and as per the report I was not reckless in driving at all. I was also hurt in the incident and had to undergo the Surgery.
I regret on hurting the Passenger and another Driver that happens when my car skidded on wet weather but I should also mention that:
·       I was not under the influence of Alcohol
·       I was not reckless on Driving
·       I was under the speed limit
… I am thankful towards the Court for understanding the situation and only giving me Good Behaviour Bond and allowing me to continue my study and progress further. (sic)
The Tribunal discussed these circumstances at length with the applicant. The Tribunal had these discussions with the applicant not to revisit the criminal law process but for the purpose of seeking to understand the extent to which the circumstances in which the ground for cancellation arose were beyond the applicant’s control, which is a critical part of this consideration.
The applicant told the Tribunal that he could remember events including up until the point of collision in the accident but could only recall events from the next day when he awoke in hospital. The applicant provided the Tribunal with an 11 page hospital discharge report that records he was admitted to hospital on 4 May 2019 and discharged on 8 May 2019 and states “Patient unable to recall details of collision”, “Can’t recall if he required extrication from car” and “Can’t recall if dashboard collision to knee” but otherwise does not record any details about the applicant losing consciousness or brain function.
The applicant told the Tribunal he was not under the influence of any medication or drugs at the time of the accident. There is no information to the contrary before the Tribunal and the Tribunal accepts this evidence. There is also no evidence before the Tribunal of the applicant having any other criminal convictions in Australia.
The Tribunal read the relevant parts of the New South Wales FACTS SHEET to the applicant during the Tribunal hearing and told the applicant it did not support his version of events in relation to the accident because it states the dash-cam footage from the car behind recorded the applicant’s car was under control and not skidding. The Tribunal emphasised to the applicant that the FACTS SHEET states his car “drifted” from lane 1 across lanes 2 and 3 for seven seconds before the collision and does not refer to any skidding being evident. The Tribunal indicated to the applicant the version of events recorded in the FACTS SHEET indicates to the Tribunal that the applicant was not paying attention to where he was driving rather than the accident being the result of his car skidding. The applicant responded that he was paying attention but that his car skidded when he tried to change lanes in the wet.
The Tribunal does not accept the applicant’s explanation. It is not consistent with the facts the New South Wales Police presented to the Magistrate when the applicant pleaded guilty to two counts of dangerous driving occasioning grievous bodily harm. The Tribunal recognises being involved in an offset head on motor vehicle collision at high speed (at or near 60kmh for both vehicles) visited significant physical trauma upon the applicant but he was definitive and consistent in his evidence that his vehicle going into a skid was the cause of the accident, not his control of the vehicle. The fact that the applicant was convicted of dangerous driving objectively means the applicant was considered to be responsible for the accident and the accident did not occur for reasons outside the applicant’s control. This is of great concern to the Tribunal as it indicates the applicant has not accepted responsibility for his dangerous driving and therefore does not have genuine insight into his offending.
The Tribunal was also concerned that the applicant’s statement to the Tribunal mentions only the “hurt” to the applicant’s passenger “and another Driver” when in fact the drivers of two other vehicles were injured and hospitalised. It also caused the Tribunal concern that the applicant appeared to attach importance to the injuries he suffered when in the Tribunal’s view he was the author of his own misfortune while the three other people seriously injured by the applicant’s dangerous driving were innocent victims with no control over the misfortune the applicant caused to befall them.
However, in discussing these aspects with the applicant he told the Tribunal both he and his parents were greatly concerned for the victims of the accident and the applicant wrote a letter to the Magistrate apologising to the victims but had no other way of contacting or apologising to the drivers of the second and third vehicles. The Tribunal accepts this evidence and that the applicant is genuinely remorseful for the injuries his driving caused.
The applicant explained his passenger was a childhood friend also studying in Australia and had fully recovered from his injuries as has the applicant, apart from some minor pain from time to time. The applicant does not know the recovery or prognosis for the drivers of the other two vehicles.
The applicant is prohibited from driving until after 5 May 2021. The applicant said he does not intend to drive anytime soon as he is presently studying online but if he can enrol in the Bachelor degree he intends to enrol in then he will be able to get the train into Sydney to attend classes. The applicant indicated he would only need to drive if he had to travel a distance to work where public transport was not available as it would be too expensive for him as a student to use taxis or ride sharing services. It is of concern to the Tribunal that the applicant would consider driving again but the Tribunal accepts the applicant will be able to lawfully do so, subject to his driver’s licence being re-issued, from 6 May 2021.
The Tribunal notes the applicant has received a relatively lenient sentence given a sentence of imprisonment of up to 7 years (where speed, alcohol or drugs are not involved) was available to the Magistrate. This indicates to the Tribunal the sentencing Magistrate assessed the moral culpability of the applicant to be at the lower end of the continuum of criminality, despite the allegation of extended inattention, the seriousness of the injuries caused and the number of people injured by the applicant’s dangerous driving, each of which are considerations relevant to sentencing and could have been considered aggravating factors by the Magistrate.
Having noted those matters, the Tribunal considers the recording of two criminal convictions against the applicant and the imposition of an 18-month good behaviour bond to not be insignificant matters. According to the New South Wales Sentencing Bench Book, accessed at the time of this decision, the disqualification from holding a driver’s licence is mandatory in all cases of dangerous driving in New South Wales and is additional to any penalty imposed by the court.
The Tribunal finds that the circumstances that led to the cancellation of the applicant’s Student visa did not occur due to reasons that were beyond the applicant’s control. The applicant drove dangerously which caused an accident that resulted in serious injuries to three other people. For these reasons, the Tribunal finds that this consideration weighs in support of the cancellation of the applicant’s visa and the Tribunal gives it significant weight.
In deciding the weight to give to this consideration the Tribunal has carefully considered the circumstances of the applicant’s offending and the seriousness of his convictions, balanced by the relatively lenient sentence he received for those offences and the Tribunal having accepted the applicant is genuinely remorseful for his offending. In the absence of a lenient sentence and the applicant’s genuine remorse, the Tribunal would have likely given this consideration great weight in support of the cancellation of the applicant’s visa.
The past and present behaviour of the applicant towards the Department
The applicant told the Tribunal that he has not had any adverse dealings with the Department. The Tribunal accepts this evidence. The delegate recorded in the primary decision that there was no information before the delegate of any adverse past or present behaviour by the applicant toward the Department and that the applicant responded to the Notice of Intention to Consider Cancellation of a visa in a timely manner.
The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives it some weight.
Whether there are persons in Australia whose visas would, or may, be cancelled under s.140 of the Act
The applicant told the Tribunal that there is no-one dependent upon his visa. The Tribunal accepts this evidence. 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 being unlawful and liable to detention, 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
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 could also be 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.
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.
The Tribunal indicated to the applicant when discussing this consideration with him, that the Tribunal could find that for people in his circumstances, being someone who has been convicted of two criminal offences in Australia, it is an intended outcome of the migration law that their visa be cancelled, leading the Tribunal to find that this consideration weighs in support of the cancellation of the applicant’s visa.
The applicant responded that he knows what he did is a big crime in Australia and if the Tribunal gives him a chance he will study hard and make his parents and community proud and he is a good person with no involvement before or after the accident in criminal activity and with no prior driving offences.
The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa but in the applicant’s circumstances gives this consideration only modest weight.
Whether Australia has obligations under relevant international agreements including non-refoulement 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
The applicant gave evidence he does not have any children and there are no impediments to him returning to Nepal, current COVID-19 global pandemic travel restrictions aside. 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
The applicant’s visa is a temporary visa. 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
The applicant made a closing submission to the Tribunal that if he can continue his studies in Australia it will make his future and will be good for him, his family and his community. The Tribunal has considered these submissions in these reasons for decision.
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 genuine academic progress in Australia and intention to study a Bachelor degree (rather than another Vocational Education and Training Sector course) as part of his general circumstances and in particular when considering the hardship that cancellation of his visa would cause him.
Conclusion
The Tribunal finds that those considerations that weigh in support of the cancellation of the applicant’s visa, namely the applicant’s lack of compelling reason to stay in Australia and the circumstances in which the ground for cancellation arose, are outweighed by those considerations which weigh against the cancellation of the applicant’s visa.
For these reasons, when considering the circumstances as a whole, the Tribunal concludes that the applicant’s Student visa should not be cancelled.
DECISION
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

[2021] AATA 1315

24 February 2021

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Immigration

Administrative Law

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Judicial Review

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