NEUPANE (Migration)

[2020] AATA 1146

NEUPANE (Migration) [2020] AATA 1146 (23 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr SANTOSH NEUPANE

CASE NUMBER:  1713413

HOME AFFAIRS REFERENCE(S):          BCC2017/1422536

MEMBER:Melissa McAdam

DATE:23 January 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 23 January 2020 at 9:31am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered Higher Education course – limited academic progress – applicant departed Australia – disruption caused by the Nepal earthquake – applicant changed to Vocational course – physical and mental health problems – visa period expired – decision under review set aside        

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, Schedule 2 cl 573.223, 573.231; Schedule 8; Condition 8516; r 1.40

CASES

Singh v MIBP [2016] FCA 679           

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 20 June 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant was represented in relation to the review by his registered migration agent.

3. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant had not complied with Condition 8516. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. Condition 8516 sets out that the Visa holder must continue to be a person who would satisfy the primary or secondary criteria as the case requires, for the grant of the visa.

   NOICC

5. On 23 May 2017 the Department Delegate sent a Notice of Intention to Consider Cancellation of the applicant’s Student visa under section 116 of the Act (‘NOICC’).

6. In the NOICC the Delegate set out the following:

   -It appeared the applicant had not complied with Condition 8516 which was imposed on his visa.

   -On 18 March 2015 the applicant satisfied the primary criteria for a Subclass TU-573 Higher Education Sector visa (‘student visa’). The criteria for the grant of the student visa required him to meet, among other criteria, subclause 573.231 or subclause 573.223(1A), which states:

   573.231

   If subclause 573.223(1A) does not apply:

   (a) the applicant is enrolled in, or is the subject of a current offer of enrolment in, a course of study that is a principal course; and

   (b) the principal course is of a type that was specified for Subclass 573 visas by the Minister in an instrument:

   (i) made under regulation 1.40A; and

   (ii) in force at the time the application was made.

   eligible higher degree student means an applicant for a Subclass 573 visa in relation to whom the following apply:

   (a) the applicant is enrolled in a principal course of study for the award of:

   (i) a bachelor’s degree; or

   (ii) a masters degree by coursework;

   (b) the principal course of study is provided by an eligible education provider;

   (c) if the applicant proposes to undertake another course of study before, and for the purposes of, the principal course of study:

   (i) the applicant is also enrolled in that course; and

   (ii) that course is provided by the eligible education provider or an educational business partner of the eligible education provider.

   573.223 (1A)

   If the applicant is, and was, at the time of application, an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student:

   (a) the applicant gives the Minister evidence that the applicant has:

   (i) a level of English language proficiency that satisfies the applicant’s eligible education provider; and

   (ii) educational qualifications required by the eligible education provider; and

   (b) the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

   (i) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

   (ii) any other relevant matter; and

   (c) the Minister is satisfied that, while the applicant holds the visa, the applicant will have sufficient funds to meet:

   (i) the costs and expenses required to support the applicant during the proposed stay in Australia; and

   (ii) the costs and expenses required to support each member (if any) of the applicant’s family unit.

   -A delegate was satisfied that the applicant met the requirements of subclauses 573.223(1A) or 573.231 and granted him the TU-573 student visa on 18 March 2015 with condition 8516 attached.

   -According to the Provider Registration and International Student Management Systems (PRISMS), it appeared that the applicant has not been enrolled in a bachelor’s degree or master’s degree course that is a principal course of a type specified for Subclass 573 visas by the Minister in an instrument made under regulation 1.40A, from 25 July 2015 until he enrolled in a Bachelor of Business Information Systems at Australian Institute of Higher Education Pty Ltd on 29 May 2017.

   -PRISMS indicated that the applicant’s confirmation of enrolment (CoE) in relation to the Bachelor of Information Technology (Business Systems) course was cancelled on 05 August 2015 by Federation University and since then he has not held enrolment in a course of study that is a principal course of a type specified for Subclass 573 visas until he enrolled in a Bachelor of Business Information Systems at Australian Institute of Higher Education Pty Ltd on 29 May 2017.

   -Based on this information, it appeared that the applicant had not continued to be a person who would satisfy either subclauses 573.231 or 573.223(1A). As such, it appeared the applicant had not continued to be a person who would satisfy the primary criteria for the grant of the visa and has not complied with condition 8516.

   -If this is the case, the applicant’s visa may be cancelled under s116(1)(b) – breach of visa condition 8516 of the Migration Act 1958.

   Response to NOICC

7. On 30 May 2017 the applicant provided the following written response to the Delegate:

   - He had not intentionally violated visa condition 8516.

   - He enrolled in a Diploma of IT at Strathfield College. He attached a letter of offer from the college, dated 17 August 2015.  He completed the course and submitted a Statement of Attainment from the college.

   - He failed to complete a Bachelor of IT at Federation University because he found the course highly complex.  He submitted a copy of his results recording fails in three subjects.

   - Following his completion of the IT Diploma course at Strathfield College the applicant received an offer of enrolment to study a Bachelor of Business Information Systems at the Australian Institute of Higher Education.

   Delegate’s Decision

8. The applicant provided a copy of the Delegate’s decision to the Tribunal. 

9. The Delegate recorded that the applicant’s visa was due to expire on 15 March 2018.

10. The Delegate found that the applicant had not complied with Condition 8516 and decided to cancel the visa.

    Information to the Tribunal

11. The Department’s Movement Records for the applicant show that he departed Australia on 30 January 2018 and has not returned.

    S.359(2) request

12. On 23 August 2019 the Tribunal wrote to the applicant under s.359(2) of the Act requesting him to provide information relevant to his current circumstances and why his Student visa should not be cancelled.

    S.359(2) response

13. On 6 September 2019 the applicant’s Agent provided the following written response:

    …  there exists compelling and compassionate circumstances surrounding breach of the visa condition. …

    The applicant was granted student visa on 18/03/2015 to undertake higher education (Bachelor of Information Technology, Information system at Federation University) as that is the standard progression for someone who has completed higher education in his home country, Nepal, i.e. to undertake higher education. Vocational qualifications aren’t that prevalent. There aren’t many provisions for VET (Vocational Education) to help students transition from higher secondary education to degree qualification.

    He too, wanted to obtain degree qualification when he made the decision to undertake further education in Australia. He arrived in Australia on 23/03/2015 and started his studies. He started living with his Aunt (Dad’s sister) as she was resident here. Living away from the family members and in a new environment was challenging and hard at times but he carried on with his studies. The teaching methods and assessments were very different from the methods and techniques used in Nepal. He was struggling but tried his best to cope with the study load.
    Soon after the applicant arrived in Australia, he was adversely impacted by the earthquake that hit Nepal on April 2015. The tragedy and the horror of what his family and loved one faced was too real to be neglected. His home was destroyed by this earthquake and his father was traumatised by this. Being far away from them and not being able to comfort and assist in any way made him distressed and angry. He was not able to concentrate on his studies, the constant floods of news and media posts of the disaster made it hard to get it out of his mind. As a result, he failed 3 subjects.

    In the meantime, he had a misunderstanding with his Aunt and he was asked to leave and find a new place of residence. This was unexpected and hurtful but he was left with no other option. He moved to a new place of residence with other students but it was tough for him adjust in this environment. They were not very amiable and supportive. But he realized he had to carry on with his duties and so he did. To add to his misery, he also had a personal crisis at that same time. His girlfriend of 3 years broke up with him during Christmas time in 2016 and it was really agonizing and painful. He tried to put it behind but it wasn’t easy and he wasn’t succeeding in doing that. He was depressed and found no joy in anything. He had lost interest in doing anything.

    Not being able to cope with the hardships, he decided to change his course and got enrolled in Diploma of Information Technology at Strathfield College. His goal was to complete higher education eventually but at that time a course with lesser load seemed liked a smarter decision. He successfully completed his Diploma in April 2017. Even when he was undertaking his Diploma, he was still in much anguish and experienced mental suffering. He was having difficulty coping in a new place and new environment and in new friends circle. (Later he was diagnosed with [a condition]). He initially experienced [specified medical symptoms]. He went for medical check-up and he was given medication for it. Nevertheless, his health kept deteriorating and he kept feeling more depressed and gloomy by the day. He couldn’t understand what was going on with him and pain of above mentioned events didn’t subside.

    As planned, he intended to complete higher education (Bachelor’s Degree) and consulted with his agents regarding that. But due to unavailability of the intake immediately after the completion of diploma, he had to enrol in General English (To maintain visa condition). He had already begun the process of getting enrolled in Higher education at that time. However, before he could get his COE, he received letter from department to consider cancellation due to breach of visa condition.

    On 23/05/2017, he received letter from department of immigration notifying him of their intention to consider cancellation. He also received his COE immediately after this notice was received. The Immigration lawyer at that time provided submission to Department in response to NOICC along with his COE for higher Education. However, the department decided to carry forward the cancellation. On 20/06/2017, he was notified of [the] visa cancellation. Please note that at the time of cancellation he was enrolled in Higher education. As per the advice from the agent and his family, he submitted a review appeal with AAT.
    After the cancellation, he was feeling very low but wanted to continue with his studies. He went to the college for some time but he was in a bad shape mentally and physically. He did go for medical check-ups often  but it was not helping him recover. This cancellation notice served as final blow to send him down the path of [specified conditions]. His father fell sick too and had to be hospitalised due to [specified problems]. This news added to his mental sufferings. He couldn’t maintain his course progress. He was constantly agonized and got [specified symptoms]. He was getting a lot of [related] symptoms [including specified symptoms]. He felt fearful and nervous all the time. He wanted to get his act together and assume responsibility but he was helpless at the hands of his own mental sufferings. He shared his severe health condition with his parents and they finally asked him to return and get proper treatment done. He left Australia with a heavy heart.

    Due to his unfit mental state, he even missed his first flight to Nepal and had to book another one losing the cost of his flight ticket. During his return, in those 16 hours in the flight, he [experienced specified symptoms]. After his arrival, his parents talked to him and comforted him. He was taken to several hospitals for check-up. He had [specified checks] but doctors couldn’t diagnose him with anything. Finally he was diagnosed with [named conditions] (please find report attached) at Dhulikhel Hospital, one of the prominent hospitals of Nepal. He received treatment for these conditions and with the help from his parents and friends, he is now feeling much better. He can tell the difference in his perspective in life. He has started enjoying things and started taking interest in things. He feels much regret in recognizing the fact that he wasted his time and money and did not even achieve anything. He feels for his parents. They put their hard earned money in making sure he was able to get the education he wished for.  

    The applicant earnestly wishes to complete his degree studies (qualification) and is prepared to make necessary arrangement for the COE and other required documents if the officer will consider to remit his matter to department for further consideration. With this submission, the applicant would like to urge the officer to consider his circumstances and revoke/remit his cancellation.

14. The Agent enclosed the following document copies:

    i.Two photographs of a damaged building.

    ii.A letter dated 3 September 2019 from the Ward Chairman of Banepa Municipality certifying that the applicant’s father’s residence was destroyed in an earthquake on 25 April 2015.

    iii.A CoE created 10 May 2017 from Caprock International Pty Ltd, for a General English (Beginner to Advanced) course.

    iv.An Enrolment Agreement dated 3 May 2017 from North Sydney English College.

    v.A medical record from the Forest Mall Medical Centre recording consultations with the applicant on:

    - 20 September 2017 because the applicant complained of [stated physical symptoms].

    - 22 February 2017 because the applicant complained of [stated condition].

    - 8 August 2016 for [several conditions].

    vi.A Medical Certificate from Dr Md Islam, dated 8 August 2016 stating that the applicant was receiving medical treatment for the period 8 August 2016 to 9 August 2016.

    vii.A Medical Certificate from Dr Partha Ghosh, dated 22 February 2017 stating that the applicant was receiving medical treatment for the period 22 February 2017.

    viii.BUPA Benefit details

    ix.A letter from Dr Dipak Kunuwar, Assistant Professor, Department of Psychiatry, Dhulikhel Hospital, Kathmandu University Hospital, dated 1 September 2019, stating that the applicant presented to the hospital on 2 February 2018 complaining of [specified symptoms]. He was diagnosed to have ‘[a named condition]’, and prescribed medication. He has significantly improved and his symptoms have disappeared completely.  He is taking medication and his condition is stable so that he can resume his activities, work and studies.

    x.Clinical notes related to the applicant’s health.

    Tribunal Hearing

15. The applicant appeared before the Tribunal on 7 January 2020 to give evidence and present arguments. The following is a summary of the information provided by the applicant at the hearing:

    a.The applicant studied a Bachelor degree at the Federation University. Study felt very hard at that time.  The applicant was feeling very sad because of the earthquake in Nepal and damage to his family’s house.

    b.There was a gap when he was not enrolled in a course of higher education. He was enrolled in university in March 2015 but stopped after one semester because it was very hard. He passed three of four subjects.

    c.He continued to study English for about a year and a half.

    d.He later started a Diploma course at Strathfield which he completed in September 2016. 

    e.He enrolled in a Bachelor of Information Technology at college in 2017.

    f.The Tribunal put the applicant’s PRISMS’ record information to him under s.359AA of the Act. The applicant stated it was inaccurate in that he had paid his fees to the AIHE college, contrary to the college’s information that he did not. He gave payment monies to his Agent who told him that payment had been made to the college.  He thinks the college made a mistake regarding payment.

    g.The applicant’s intention was to complete his higher education.  He had [several conditions affecting his studies]. He didn’t know what his problem was.

    h.His aunt threw him out of her home because she and her husband were in conflict. They would argue. They told him to move out within two days.

    i.After he enrolled in the Bachelor of Information Technology at college in 2017 his father became sick.  After the earthquake destroyed the home his father had to live on the street in a tent. He was injured badly and developed a [stated condition]. He is under medication and receives treatment.

    j.The Tribunal put to the applicant that whenever adverse incidents happens he seemed unable to study, so how would he successfully complete higher education study in Australia if future difficulties arise. The applicant responded that the incidents that occurred were the first of their kind to ever happen in his life so it was shocking for him.  He feels he has a new life now.  Previously for two years he didn’t smile or feel any joy. Now he feels quite happy and can defeat his emotional illness.  He has new hope. He would like to prove to his parents that like other people he can complete things. Even though he had past difficulties he got through that time and crossed it.  In the past he did not know what was wrong with him.  In Nepal, with his parents’ support, he has joined an exercise group and found self-motivation.  He can handle situations now.  He is no longer taking medication.

    k.In Australia, without his parents’ support, he feels he can still handle study because he has come through that difficult time in his life. Now he is able to commit to things in any situation.

    l.The Tribunal put to the applicant that his visa was due to expire March 2018 if it had not been cancelled. The applicant responded that if his visa is not cancelled he plans to continue his exercise and complete his study. If he can help his parents he will be very proud.  He would like to complete his study in Australia. He will apply for a new visa.  He would like to study a Bachelor of Information Business Systems.  From childhood he was fascinated with technology. He would repair computers and take apart and reassemble gadgets.

    m.He does not want to complete his study in Nepal because the education there is not of global standard. Australian education is more recognised globally and can be utilised globally.

    n.Every day in Nepal he is doing his exercises and improving his health and mental situation. He is also going to college to study a management course. He is passing his subjects there. He is also running his parents’ shop and helping arrange tenants for their rental property.

    o.When he was in Australia he complied with all his other visa conditions.

    p.He feels he has wasted his three years here.  His physical and mental health deteriorated while he was  in Australia. He has caused problems to his parents and wants to prove that he can do something and support them.

    q.There is no reason he cannot stay in Nepal. He just wants to come to Australia to complete his study here. He finds the lifestyle a little different in Nepal but it is alright.

    r.The applicant’s Agent submitted that it is important to the applicant to have a clean immigration record so this is another reason why he wants the cancellation set aside.

    Post-Hearing Submission

1. On  21 January 2020 the applicant’s Agent submitted the following written material:

   -A Course progress letter from the applicant’s current education provider in Nepal, Banepa Siddhartha College, dated 19 January 2020. The letter confirms the applicant is a regular student at the college and has passed all his subjects so far in a Bachelor of Business Studies.

   -An updated medical report from Dr Ajay Risal, dated 8 January 2020.  Dr Risal states that the applicant was previously evaluated and managed for [a named condition]. He was taking medication until November 2019. He has ceased taking medication and has significantly improved. His symptoms have disappeared. He can resume his daily activities, studies and work without disturbance.

   CONSIDERATION OF CLAIMS AND EVIDENCE

2. 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)(b). 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?

   s.116(1)(b) - non-compliance with conditions

3. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8516 attached to the applicant’s visa. This condition requires that the Visa holder must continue to be a person who would satisfy the primary or secondary criteria as the case requires, for the grant of the visa.

4. Relevantly, it was a criterion for grant of the applicant’s Subclass 573 visa that the applicant is an eligible higher degree student who satisfies cl.573.223(1A), or, if not, is enrolled in, or the subject of a current offer of enrolment in a principal course of a kind specified for that subclass by the Minister in an instrument under r.1.40A that was in effect at the time of the visa application: cl.573.231. The relevant instrument under r.1.40A in effect at the time of the visa application was IMMI 14/015.

5. The definition of ‘eligible higher degree student’ requires that the applicant is enrolled in a principal course with an ‘eligible education provider’ that is a Bachelor’s degree, Master’s degree by coursework or, for visa applications made on or after 23 November 2014, an advanced diploma in the higher education sector: cl.573.111. ‘Eligible education provider’ means an education provider specified in an instrument made under cl.573.112. As the applicant applied for the visa before 1 July 2014, the relevant instrument specifying eligible education providers for this visa is IMMI 14/007.

6. In respect of the criterion requiring the applicant to be enrolled, this requires the applicant to maintain enrolment while they hold the visa: Singh v MIBP [2016] FCA 679.

7. In the present case, the applicant’s visa was cancelled on the basis the applicant did not continue to be a person who would satisfy either subclauses 573.231 or 573.223(1A).  He therefore no longer satisfied the primary criteria for the grant of the visa and did not comply with condition 8516. 

8. Information from the Provider Registration and International Student Management System (PRISMS) indicates that between 5 August 2015 and 29 May 2017 the applicant was no longer enrolled in a Bachelor’s degree or Master’s course and was not enrolled in a course of study that is a principal course of a type specified for subclass 573 visas by the Minister in an instrument made under regulation 1.40A.  The applicant also confirmed that there was a gap between his first semester enrolment at Federation University in 2015 and May 2017 in which he was not enrolled in a required course of study.

9. On the basis of the evidence before it, the Tribunal finds that the applicant was no longer enrolled in a Bachelor’s degree or Master’s course and was not enrolled in a course of study that is a principal course of a type specified for subclass 573 visas by the Minister in an instrument made under regulation 1.40A, between August 2015 and May 2017.  He failed to satisfy criteria under cl.573.231 and has therefore not complied with condition 8516.

10. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) 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

11. 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’.

    the purpose of the applicant’s travel to and stay in Australia

12. The applicant was in Australia on a Student visa for the purpose of study. The Department’s records show he completed a Diploma course in 2016 and an English language course in 2017. He also passed three subjects in his Bachelor degree course. He therefore spent a  not insubstantial amount of his time in Australia studying and fulfilling the purpose of his being in Australia. 

13. The Tribunal therefore gives this factor some weight in the applicant’s favour, against cancelling his visa.

    whether the applicant has a compelling need to travel to or remain in Australia

14. The applicant has departed Australia. He did not present any compelling need to travel to Australia. He expressed a wish to complete his study in Australia but did not attach any particular urgency or importance to being able to travel here. The Tribunal considers this factor weighs in favour of cancelling the applicant’s visa.

    the extent of compliance with visa conditions

15. The information before the Tribunal indicates the applicant has complied with his other visa conditions. The Tribunal therefore gives this factor some weight in the applicant’s favour.

    the degree of hardship that may be caused to the applicant or his family members should his student visa be cancelled 

16. The cancellation of the applicant’s visa has resulted in him having to depart Australia without completing his degree course here. It has therefore caused disruption to his life, study and career plans. It has also cost him financially. The Tribunal therefore accepts that the visa cancellation has resulted in a level of hardship to the applicant. The Tribunal gives this factor some weight in the applicant’s favour.

    the circumstances in which the ground for cancellation arose 

17. The Tribunal notes that the grounds for cancellation arose when the applicant withdrew from his Bachelor degree course because he found it too difficult.  The applicant has presented evidence that he found it very difficult to study for a period of time because he was emotionally distressed by the impact of the April 2015 earthquake upon his family, being suddenly forced out of his aunt’s home, his father’s illness and his own physical and mental health problems.

18. The applicant provided detailed oral evidence about these events. He also submitted documentary evidence regarding both their occurrence and their impact. The Tribunal accepts that the events happened as described by the applicant.

19. The Tribunal considers that each of these events, particularly the earthquake in Nepal, could readily interfere with the applicant’s ability to engage in study. 

20. The Tribunal also accepts that the applicant has sought treatment and help to restore his mental health and resilience and that he is again successfully studying in Nepal.

21. The Tribunal views the reasons for the applicant’s temporary inability to engage in his higher degree studies in Australia, sympathetically to the applicant. The Tribunal accepts they were matters largely outside his control. The Tribunal therefore gives this factor substantial weight in the applicant’s favour.

    the past and present behaviour of the applicant towards the Department.   

22. The information before the Tribunal shows that the applicant has been cooperative and responsive with the Department from the time he received the NOICC.  He has also responded to the Tribunal’s queries and engaged with the review process, despite departing Australia. The Tribunal therefore gives this factor some weight in the applicant’s favour.

    whether there are persons in Australia whose visas would, or may be, cancelled under s140 as a result of the cancellation of the applicant’s visa.   

23. On the evidence before it the cancellation of the applicant’s visa would not result in the consequential cancellation of any dependent visa holders. The Tribunal weighs this factor neither in favour nor against cancelling the visa.  

    whether there are any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation of the applicant’s visa. 

24. There is no evidence that any of Australia’s international obligations would be breached as a result of the visa cancellation.  The Tribunal therefore considers this factor favours cancelling the applicant’s visa.

    whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder 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 person from making a valid visa application without the Minister’s intervention

25. The applicant has departed Australia so he is not liable to mandatory detention here.  The visa cancellation does however render him subject to Public Interest Criterion 4013 so that he must wait three years from the date of cancellation before he can be granted another visa to Australia.  This prohibition period will expire in several months, in June 2020.  The Tribunal does not consider several months a particularly long or unreasonable period to wait to be able to obtain a visa to Australia.

26. However a visa cancellation is also a negative aspect of a person’s immigration history which can cause other obstacles in negotiating international travel. 

27. The Tribunal therefore gives this factor a little weight in the applicant’s favour.

    Other relevant matters

28. According to the Department’s records the applicant’s Student visa was due to expire in March 2018. This date has passed so that the visa cannot be reinstated to the applicant.

29. However setting aside the cancellation will allow the applicant to now pursue other visa options for return to Australia if he wishes.  He has expressed his wish to have the opportunity to show his parents he can complete his studies in Australia.  The Tribunal accepts this is important to him.  The Tribunal also notes the efforts the applicant has undertaken in Nepal to seek help and to strengthen his ability to cope with adversity. 

30. The Tribunal accepts that setting aside the cancellation will remove a potential impediment to  the applicant pursuing further study in Australia. The Tribunal therefore gives this factor some weight in the applicant’s favour.

    Conclusion

31. The Tribunal considers that the factors in favour of not cancelling the applicant’s visa outweigh the factors favouring cancellation.

32. Considering the circumstances as a whole, particularly the circumstances in which the breach of Condition 8516 arose, the Tribunal concludes that the visa should not be cancelled.

    DECISION

33. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Melissa McAdam
    Member