Raut (Migration) - [2025] ARTA 150

RAUT (MIGRATION) [2025] ARTA 150 (4 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Amit Raut
Respondent:  Minister for Home Affairs
Tribunal Number:  2427775
Tribunal:David McCulloch
Place:Sydney
Date:4 February 2025
Decision:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 04 February 2025 at 2:46pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – non-compliance with condition of visa – criminal conviction and conditional release order – ground for cancellation conceded – discretion to cancel visa – circumstances of offending against conditions of apprehended violence order – no aggression or physical harm – poor study history – previous cancellations for non-commencement and unsatisfactory course progress – no evidence of study history provided – hardship if visa cancelled – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 116(1)(g), (1A)
Migration Regulations 1994 (Cth), r 2.43(1)(oa)
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 2 August 2024 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).
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The applicant is a citizen of Nepal born on 24 February 2000. The visa that has been cancelled was granted on 19 December 2022 for stay period until 15 August 2025.
The applicant was issued with a Notice of Intention to Consider Cancellation of the visa (NOICC) on 2 July 2024. The applicant responded in writing.
The delegate cancelled the visa under s 116(1)(g) on the basis that the applicant has been convicted of an offence against the law of the Commonwealth or State or Territory. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 22 January 2025 at 2pm to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
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). The Migration Regulations 1994 (Cth) (the Regulations) may prescribe circumstances in which a visa is not to, or must, be cancelled: s 116(2) and (3). Further, the Regulations may prescribe matters to which the Minister must, must not, or may, have regard in determining whether a ground for cancellation is made out under s 116(1), (1AA), (1AB) or (1AC), and the weight to be given to such a matter: s 116(1A).
If satisfied that the ground for cancellation is made out, and any circumstances prescribed under s 116(2) or (3) are not applicable, the decision maker must proceed to consider whether the visa should be cancelled. In determining whether the visa should be cancelled, the decision-maker must have regard to all relevant circumstances, which may include matters prescribed under s 116(1A) and other matters of government policy.
Does the ground for cancellation exist?
A visa may be cancelled under s 116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in reg 2.43 of the Migration Regulations 1994 (Cth). In the present case, reg 2.43(1)(oa) provides that a ground for cancellation is that the holder of the visa has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any)).
The delegate’s decision indicates that on 2 May 2024 in the Local Court of New South Wales at Sutherland the applicant was convicted of:
·Seq 1 - Actual offence – Contravene prohibition/restriction in AVO (Domestic)
The applicant was sentenced to a Conditional Release Order for a period of nine months subject to the conditions that he not commit any offence while subject to the Order, must appear before the Court if called to do so and must be of good behaviour.
In the hearing, the applicant agreed with this conviction and sentence.
Given that, the Tribunal is satisfied that the ground for cancellation in s 116(1)(g) exists. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether the visa should be cancelled.
Consideration of discretion
Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. 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 ‘General visa cancellation powers’.
These matters include: the purpose of the visa holder’s travel to and stay in Australia; compelling reasons to remain in Australia; the extent of compliance with visa conditions; the degree of hardship that may be caused to the visa holder and any family members; the circumstances in which the ground for cancellation arose – whether there are extenuating circumstances beyond the visa holder’s control; the visa holder’s past and present behaviour towards the Department; whether there are any persons in Australia whose visas would or may be cancelled under s.140 (i.e. consequential cancellation); whether there are mandatory legal consequences to the decision (whether indefinite detention is a possible consequence in light of any non-refoulement obligations any provisions in the Act which prevent the person making a valid application without the intervention of the Minister or whether the person would become an unlawful non-citizen and liable to be detained upon cancellation); whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation; the impact on children of the cancellation; whether the cancellation would lead to removal in breach of Australia’s non-refoulement obligations; and any other relevant matters.
In the response to the NOICC the applicant addresses the circumstances of the conviction. Also addressed are issues relating to the applicant’s study history in Australia.
In relation to the conviction the applicant refers to the events of 1 May 2024. He had his part-time job commencing at 10am. He had a fight with his boss at work. He returned home about 3pm. He was angry and frustrated. His wife called him and they had arguments over silly issues. Although the applicant does not drink very much, on that day he consumed nearly a 700ml bottle of whiskey. He was out of control. The applicant did not harm his flatmates, nothing big happened. He was guilty for his behaviour that night. He was having a rough time which led to the incident unintentionally. Afterwards, the applicant completely stopped drinking. He lived with different flatmates. He managed the court fines and followed the conditional release Order rules. He has not committed any subsequent offence. The applicant’s biggest problem is that he cannot control his drinking.
The applicant refers to hardship if the visa remains cancelled. It will have major consequences for his career. If he does not finish his degree he cannot get a job back at home which will affect him and his whole family. He asks for the chance to complete his degree in Australia. He will not commit any further offence and will follow rules and regulations as an international student.
In the hearing the Tribunal asked the applicant about the circumstances of his convictions. The applicant indicated that he had issues with a flatmate which resulted in an Apprehended Violence Order (AVO) against him. The term of the AVO was that the applicant was not allowed to drink in the home with his flatmates.
The applicant indicated that because of an argument he was having with his wife in Nepal he later was drinking at home, ending with him taking himself to his bedroom. He indicates that the flatmate returned and saw the alcohol bottles and called the police. The applicant in the hearing indicated that he did not otherwise create difficulties for the flatmate.
The applicant was asked to provide, after the hearing, the AVO and the Police Facts Sheet in relation to the allegations against him. The applicant indicated that he had these documents and would provide them.
In response the applicant provided the relevant New South Wales Police Facts Sheet in terms of the allegations leading to the convictions. The applicant had an AVO which included conditions that he not approach or be in the company of the two victims in the matter for at least 12 hours after drinking alcohol or taking illicit drugs.
The Facts Sheet indicates that a call was received from one of the victims, reporting that the applicant was acting strangely, urinating all over the bathroom, yelling to himself and making threats of self harm. Police attended. A bottle of whiskey was found in the main room with two thirds of the contents absent. The victims indicated that they had not drunk from the bottle. Police checks discovered the terms of the AVO, which they determined the applicant had breached. The applicant was arrested.
The fact of the applicant being intoxicated is not in the Tribunal’s assessment an extenuating circumstances. Not only does the applicant have to take responsibility for his drinking, but the very term of the AVO requires the applicant not to be in the company of his flatmates 12 hours after drinking. Clearly, drinking in their shared home was bound to lead to a breach of the AVO, for which the applicant is fully responsible.
Having said that, it is not alleged that the applicant was aggressive to any of the victims or physically harmed them. The circumstances leading to the conviction, although not serious, are not insignificant in the context where there has been a pre-existing conduct leading to the issuing of an AVO with set conditions, which the applicant flagrantly breached.
This is adverse in the exercise of the Tribunal’s discretion.
In the written response to the NOICC the applicant provided a detailed account of his study history in Australia and difficulties with these studies. The applicant’s study history and progress was discussed in the hearing. Government records indicate that the applicant commenced studying, in January 2019, a Diploma of Information Technology Networking, which he finished. The applicant then studied with the same provider an Advanced Diploma of Network Security. The applicant indicated that he passed 14 or 15 of the 16 units required in this course when, because of the COVID-19 pandemic, he had difficulties accessing funds, resulting in the applicant’s enrolment been cancelled on 2 November 2024 for non-payment of fees. In the hearing the applicant indicated that he owed approximately $8000. He gives evidence that he was not able to continue or re-enrol in studies after the funds became available and was told he would have to start the course all over again. The Tribunal indicated to the applicant that it had difficulty accepting this.
The applicant indicated that he cannot provide evidence of the successful completion of the Diploma of Information Technology Networking or the passing of 14 or 15 units in the Advanced Diploma of Networking Security because the education provider will not release these because of unpaid fees.
The government record of study indicates that the applicant was then enrolled in a Certificate IV in Commercial Cookery. In the hearing the applicant indicates that he passed 3 to 4 units in this course but did not complete the practical component. His enrolment was cancelled on 10 March 2022 for non-payment of fees. The applicant indicated that he owed $12,000 and that the amount was not paid because the request for fees a had gone into a spam folder.
The applicant indicated that he could not persuade the education provider to allow him to continue when funds became available. Again, the Tribunal has difficulty accepting this. Similarly, the applicant is not able to provide evidence of passing units in this course because of unpaid fees.
The applicant indicates he then studied a Diploma of Project Management. He indicated that he had no interest in this course, which was cancelled on 15 August 2023 for unsatisfactory course progress. He enrolled in the course to fulfil his visa condition to be enrolled in a registered course.
The applicant indicated that he was not studying in Australia between 19 October 2023 and 24 January 2024 as he returned to Nepal where he got married to a woman in Nepal, who has remained there. The applicant indicates that a child from marriage was born on 15 November 2024.
The Tribunal noted that shortly before the applicant’s return in January 2024 he was due to be studying a Certificate IV in Information Technology which was cancelled for non-commencement of studies. The applicant indicated that he had no interest in this course and was enrolled in to fulfil the 8202 visa a condition.
The Tribunal has some doubts as to the truth of the applicant’s claims to have successfully completed the Diploma of Information Technology Networking and to have successfully completed 14 or 15 units in the Advanced Diploma of Network Security, or having passed 3 to 4 units in a Certificate IV in Commercial Cookery. The applicant indicates that he is not able to provide evidence of passing the one course and units in the other courses because education providers will not release information because of unpaid fees.
The Tribunal put to the applicant that even if it were to accept the applicant’s claimed study progress with Australia he has made quite poor study progress in Australia from his time here from early 2019. This is particularly the case given only one course was successfully completed and there was no study progress in the year from August 2023 (albeit with some months in Nepal, with the applicant not commencing his enrolled course of study in the first half of 2024,) until the visa was cancelled.
The applicant agreed with the Tribunal’s assessment that his study progress has been poor.
The Tribunal asked the applicant as to his intentions if the visa is reinstated. The applicant indicates that his intention is to study, progressively, Certificate III, IV and V in Commercial Cookery. The applicant’s intention is thereafter to return to Nepal to be with his wife and child and work as a chef.
Given the applicant’s lack of progression with cookery studies when his Certificate IV in Commercial Cookery was cancelled on 10 March 2022, the Tribunal has some doubts as to the genuineness of the applicant’s desire in this regard and why it was not a pathway he progressed at an early opportunity. Nevertheless the Tribunal, for the purpose of this decision, is prepared to accept the applicant as a genuine desire to undertake these cookery courses and that it would be a not insignificant hardship to him if he is not able.
The applicant referred to family disappointment and shame if he returns to Nepal without having attained significant qualifications in Australia. The Tribunal is prepared to accept such hardship.
The applicant indicated that apart from family and societal upset at lack of progress in Australia, he does not fear persecution or significant harm on return to Nepal.
There is no evidence that the interests of any children in Australia are affected by the cancellation.
These are the relevant discretionary factors which the Tribunal weighs.
Adverse to the applicant are the circumstances leading to the conviction which, although not serious, are not insignificant. Having said that, if there were strong countervailing discretionary factors in the applicant’s favour, particularly a very good study history, the Tribunal would consider not exercising its discretion to cancel.
However, as it is, even accepting the applicant’s claim as to his study progress at face- value, albeit without evidence, his study progress has been poor, as he concedes. This is significantly adverse to the applicant.
The circumstances leading to the conviction and applicant’s poor study history are significantly adverse to him. Even if the Tribunal is to accept that the applicant has a genuine desire to study and the hardship to him if he is not able to do so and has to return to Nepal having made limited study progress, the Tribunal is not satisfied that these matters or other matters in his favour overcome discretionary factors adverse to him.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.
Date(s) of hearing: 22 January 2022