Neupane (Migration)

This matter concerned an application for review of a decision by a delegate of the Minister for Home Affairs to cancel the applicant's Subclass 500 (Student) visa. The applicant, a 22-year-old Nepalese national, had arrived in Australia in May 2018 to study information technology. On 6 November 2019, he was convicted of two counts of dangerous driving occasioning grievous bodily harm, for which he received a 18-month Community Correction Order and a 18-month licence disqualification. The visa was subsequently cancelled on 19 February 2020.

The legal issues before the Tribunal were whether the ground for cancellation under section 116(1)(g) of the Migration Act 1958 (Cth) and regulation 2.43(1)(oa) of the Migration Regulations 1994 (Cth) was made out, and if so, whether the applicant's visa should be cancelled. The applicant did not dispute that a ground for cancellation existed due to his criminal conviction. The Tribunal was therefore required to consider whether to exercise its discretion to cancel the visa, having regard to all relevant circumstances.

The Tribunal found that the ground for cancellation was established, as the applicant had been convicted of two criminal offences against the law of New South Wales. However, as this ground did not mandate cancellation, the Tribunal proceeded to consider its discretion. The Tribunal noted that its role was not to punish the applicant, as this had been addressed by the criminal courts. While acknowledging the applicant's stated intention to continue his studies and the importance of his qualifications for future employment in Nepal, the Tribunal did not find this to constitute a compelling need to remain in Australia, given that similar courses were available in Nepal and that a student visa is intended for temporary study. The Tribunal also considered the applicant's compliance with visa conditions, noting he held a Bridging E visa with no restrictions on study.

Ultimately, the Tribunal set aside the decision to cancel the applicant's visa. The Tribunal concluded that, despite the established ground for cancellation, the circumstances of the case, including the applicant's progress in his studies and the fact that he had been sentenced by the courts for his offending, weighed against cancellation. The Tribunal's decision was made during the COVID-19 global pandemic, and the hearing was conducted via audio-visual link.