Uprety v Minister for Immigration and Citizenship
[2025] FedCFamC2G 829
•4 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Uprety v Minister for Immigration and Citizenship [2025] FedCFamC2G 829
File number(s): BRG 534 of 2024 Judgment of: JUDGE EGAN Date of judgment: 4 June 2025 Catchwords: MIGRATION LAW – whether the Tribunal had erred in the way in which it considered the applicant’s claims – whether the Tribunal had acted unreasonably in making findings – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth), s. 116(1)(b), s. 116(2)(b) Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 Division: Division 2 General Federal Law Number of paragraphs: 23 Date of hearing: 8 May 2025 Place: Brisbane Counsel for the Applicants: The Applicant appeared on his own behalf Solicitor for the Respondents: Ms X. Tran, Sparke Helmore ORDERS
BRG 534 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SUSHIL UPRETY
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
4 JUNE 2025
IT IS ORDERED THAT:
1.The name of the First Respondent be amended to “Minister for Immigration and Citizenship”.
2.The Originating Application for Review filed on 28 August 2024 be dismissed.
3.The Applicant pay the First Respondent’s costs of and incidental to the Application for Review fixed in the amount of $6,500.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE EGAN
The applicant is a male citizen of Nepal who first arrived in Australia on a Student Visa (Sub-Class 573) on 1 February 2016. His course of study in respect of that visa was an information technology course. At the hearing, the applicant indicated that he had successfully completed a Certificate IV and a Diploma of Information Technology.
The applicant was granted a further Student Visa on 28 January 2020. His course of study for that Student (Subclass 500) Visa was a Certificate III in Commercial Cookery leading to the Advanced Diploma of Hospitality Management. The applicant’s enrolment was cancelled for non-payment of fees on 17 February 2020.
On 15 November 2022, a delegate of the Minister decided to cancel the applicant’s Sub-Class 500 Student Visa pursuant to the provisions of s. 116(1)(b) of the Migration Act 1958 (Cth) (the Act). That decision was made on the basis that the applicant had not been enrolled in a course of study since 17 February 2020.
The applicant sought review of the decision of the delegate by the then Administrative Appeals Tribunal (the Tribunal). The applicant appeared before the Tribunal via video on 25 July 2024 with a representative to give evidence and present arguments.
On 6 August 2024, the Tribunal handed down its decision.
At [5] – [15] of its reasons, the Tribunal found as follows:
5. The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations). If the applicant has breached that condition, under s.116(1) of the Act, the visa may be cancelled.
6. The applicant was granted a subclass 500 Student visa on 28 January 2020 valid to 15 November 2022. That visa was subject to condition 8202.
Did the applicant comply with condition 8202?
7. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:
•be enrolled in a registered course, or in limited cases, a full time course of study or training: 8202(2);
•has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a); and
•has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).
8. In the present case, the applicant's visa was cancelled on the basis the applicant was not enrolled in a registered course: condition 8202(2).
9. The applicant was notified of the intention to consider cancellation (NOICC) of his visa on 16 August 2022. The Tribunal is satisfied that the NOICC was validly issued. The applicant responded to the NOICC and did not dispute that he had not been enrolled in a course of study from 17 February 2020.
10. He provided reasons as to why he had not been enrolled in a response to the NOICC which are considered below.
11. The delegate found the applicant had not been enrolled in a registered course of study from 17 February 2020 to the date of its decision on 15 November 2022.
12. As raised with the applicant at hearing via s.359AA the applicant's Provider Registration and International Student Management System (PRISMS) records contain information that the applicant had not been enrolled in a registered course of study when his enrolment in the packaged course of the Certificate in Commercial Cookery leading to an Advanced Diploma of Hospitality Management was cancelled for non-payment of fees.
13. The applicant confirmed in oral evidence to the Tribunal that he was not enrolled in a course of study from 17 February 2020 until 15 November 2022. The applicant did not dispute that he had not complied with condition 8202(2) of his visa.
14. Therefore, on the evidence, the Tribunal finds that the applicant was not enrolled in and did not have a Confirmation of Enrolment (CoE) in a registered course or a full-time course of study or training from 17 February 2020 to 15 November 2022 while the holder of a subclass 500 student visa. Failing to maintain enrolment means that the applicant has not complied with condition 8202(2).
15. The Tribunal is therefore satisfied that the grounds for cancellation in s.116(2)(b) exist.
After having found that there were grounds for cancellation of the visa pursuant to the provisions of s. 116(2)(b) of the Act, the Tribunal then went on to consider whether it ought to exercise its discretion to nonetheless overturn the visa cancellation.
On 6 August 2024, the Tribunal affirmed the decision of the delegate.
On 28 August 2024, the applicant filed an Originating Application for Review of the decision of the Tribunal.
Grounds of Review
The Grounds of Review as set out in the Originating Application for Review were as follows:
1. The Tribunal erred in concluding that the applicant's lack of evidence of professional help undermines his claim regarding his mental health issues. Specifically, in paragraphs 42-44, the Tribunal failed to consider that the applicant's mental health condition could have impaired his ability to seek and access professional help. Additionally, the Tribunal did not adequately consider the barriers that international students might face in accessing mental health services.
2. The Tribunal's decision in paragraph 43 to question the applicant's failure to check his emails during his travel to Brisbane was misplaced. The Tribunal did not account for the possibility that travel arrangements and email management are separate issues. Furthermore, the severity of the applicant's mental health issues might have differently impacted his ability to manage these tasks. The Tribunal’s assessment lacked a nuanced understanding of the applicant’s situation.
3. In paragraphs 45-46' the Tribunal's finding that the applicant did not make reasonable efforts to resolve his non-enrolment issue or seek assistance is flawed. The Tribunal did not adequately consider the complexities involved in obtaining a release letter and enrolling in new courses' Moreover' the assessment of the applicant's efforts was inconsistent wi.th evidence suggesting that the applicant did seek assistance from relevant parties, albeit ineffectively.
4.The Tribunal's conclusion in paragraph 46that the applicant’s ability to work undermines his claim about mental health affecting his study capabilities is incorrect. The Tribunal failed to recognize that work and study involve different cognitive and emotional demands, and the applicant may have been able to work despite struggling with significant mental health issues that impacted his ability to study.
5.The Tribunal questioned why the applicant did not enrol in non-registered courses, as mentioned in paragraph 47, without acknowledging that the applicant’s preference for registered courses was based on his career goals and the value he placed on recognized qualifications' The Tribunal's decision did not consider the validity of the applicant’s reasons for focusing solely on registered courses.
6. The Tribunal's dismissal of Covid-19 as a factor affecting enrolment in paragraph 4g fairs to adequately consider the significant disruptions caused by the pandemic. The Tribunal should have given more weight to the difficulties faced by international students in transitioning to online learning and the impact of lockdowns on their ability to study and enrol.
7.ln paragraph 50' the Tribunal's neutral weight assessment of the compelling need for the applicant to stay in Australia was unjust. The Tribunal did not fully appreciate the substantial long-term impact on the applicant's career due to not completing his studies in Australia, particularly given the specific and advanced nature of the cookery courses he sought.
8. The Tribunal's significant weight placed on non-compliance with visa conditions in paragraphs 52-54 overlooks the complexities of the applicant's situation. The Tribunal did not consider that the applicant's breach was substantially influenced by the reasons he presented, such as mental health issues and difficulties in obtaining the release letter for enrolment.
9. The Tribunal's low weight assessment of the hardship caused by visa cancellation in paragraphs 55-57 does not account for the full extent of the personal and professional impact on the applicant. The Tribunal did not adequately consider how the inability to complete studies in Australia would affect the applicant's future career prospects and personal development.
10. Tribunal's neutral weight assessment of the circumstances leading to the visa cancellation in paragraph 59 fails to recognize that the applicant's non-enrolment was influenced by factors beyond his control, including significant mental health challenges and administrative difficulties. The Tribunal did not weigh these factors sufficiently in its decision.
11. The Tribunal's overall neutral weight regarding Australia's international obligations in paragraphs 67-69 overlooks the broader implications of the visa cancellation on the applicant's rights. The Tribunal should have considered the broader impact on the applicant's life and rights under international law, even if the applicant did not specifically invoke these obligations.
12.The Tribunal's overall conclusion in paragraphs 70-73 that the limited favourable aspects do not outweigh the reasons for visa cancellation does not adequately reflect the applicant's unique circumstances and the genuine impact of his mental health and administrative difficulties. The Tribunal's decision should have taken these factors into account more comprehensively to evaluate whether the visa cancellation was warranted.
The Tribunal's decision to cancel the applicant's Class TU visa is based on several errors in evaluating the evidence and the circumstances of the case. The Tribunal's findings failed to account for the complexities of the applicant's situation and the significant impact of his mental health issues and administrative challenges. Therefore, the decision to cancel the visa should be reconsidered, and the appeal should be upheld.
The Grounds of Review must be looked at in the context of the applicant not having been enrolled in a course of study for a 2 year and 9 months period from 17 February 2020 to the date of the delegate’s decision. The applicant did not dispute that he had not complied with condition 8202(2) of his visa.
In support of his application for review of the decision of the Tribunal, the applicant filed an affidavit on 28 August 2024. The Court has had regard to the contents of paragraphs 1 – 5 inclusive of such affidavit. Having done so, the Court has appreciated that the applicant claimed that the Tribunal failed to have due regard to the applicant’s alleged mental health condition, as well as to the difficulties associated with his maintaining enrolment in an applicable course of study during Covid.
In relation to the applicant’s claims, the Tribunal noted at [31] of its reasons that the applicant had never seen a medical physician or otherwise sought advice in relation to his alleged mental health issues. The applicant stated that in or around March 2020 his mental health condition receded after he had returned to Brisbane. At [32] of its reasons, the Tribunal noted that the applicant had not attempted to contact the Department, or otherwise seek legal advice, in the 2.5 years during which he was not enrolled in a course of study. At [33] of its reasons, the Tribunal recorded that the applicant had been working at a burger restaurant since September 2020.
Further, the Court noted the contents of annexure KH-1 to the affidavit of Ms Hartwig filed on 24 April 2025. That annexure was a letter dated 22 August 2022 from the applicant to a “Visa Officer” which in part said as follows:
“By staying in this country, I have learned so much. I was able to work in so many great industries in Australia from where I was able to gain so much experience. This country has really given me so many things. I have been able to decide on my career now. I have skills and experience, and all this came from studying, working and being here in Australia.”
The Grounds of Review canvass claims relating to the applicant’s alleged mental health problems, as well as alleged covid caused difficulties concerning enrolment. On the question of the applicant’s mental health and his failure to enrol in a course of study, the Tribunal addressed such issues at [41] – [46] of its reasons as follows:
41. He was also advised in writing on 17 January 2020 of his non-financial status and that he had been given 28 days to appeal in writing against the decision if there were reasons he should not be reported. The Tribunal views as of concern why he did not appeal and is of the view a student in Australia to study would appeal. When asked why he did not appeal or pay the fees, when he said he had the money; he said he did not check his emails and referred to his poor mental health due to isolation, loneliness and other factors at the time as the reason for his inaction.
42. The Tribunal is of the view that if he was in Australia to study and his mental health was to such an extent, due to loneliness and caused by all the factors he claims, that he was not able to achieve course progress, attend class nor check emails he would have sought professional help. The evidence at hearing was that he did not. The Tribunal is therefore of the view that the lack of any evidence that he sought medical help, undermines his claim as to why he did not check his emails and appeal, why he did not pay the fees when he had the money, which lead to his enrolment being cancelled. It also undermines his claim that the reason he did not attend and achieve course progress, which led to his failure in the first semester of the course was due to his mental health issues for the reasons she claims.
43. The Tribunal also does not accept that he was able to organise and travel to Brisbane on the XPT yet was not checking his emails. It also notes he had been warned by Brenda and would expect a genuine student in Australia to study would be checking his emails, especially after he had failed.
44. In making this finding the Tribunal has considered the statutory declaration of his uncle; while it accepts the applicant was not himself; it does not consider his mental health was to the extent he claims, leading to his lack of course progress in 2019/20, rendering him unable
to check his emails and appeal for the reasons outlined above. It does not accept his mental health was the reason that led to the cancellation of his COE and his non-enrolment.
45. The applicant has then referred to moving to Brisbane and wanting to study but being unable to obtain enrolment as he had not received a release letter from the provider where he studied the Certificate Ill in Commercial Cookery following his enrolment being cancelled. He attached two offers of where he wished to study from 2020, more than two years before his visa was cancelled. The Tribunal views as undermining his claim that his purpose of being in Australia to study is that he only sought enrolment in 2020 and said after that time he did not. Further, at hearing he said he did not seek assistance from the department or legal assistance or assistance from an education agent, to assist him to enrol, at any time in his period of non-enrolment. The Tribunal is of the view if the applicant's purpose was to study he would have sought this assistance, even if he was scared of the Department. He has not provided a reasonable explanation why he would remain on a visa not studying and not seek to resolve this issue seeking assistance from an expert, if his purpose of being in Australia was to study. In contrast to the applicant's evidence his representative indicated that the applicant had approached his office seeking to study but enrolment could not be organised due to the release letter issue. He said the applicant had forgotten this. The Tribunal places more weight on the applicant's evidence that he did not seek assistance and not on the evidence of the representative. It is of the view if the applicant sought help in the period of non-enrolment to resolve the issues he would have recalled this. While the applicant said he was scared to seek help from the Department, it has difficulty accepting if his purpose was being in Australia to study that he would remain on the visa for more than two years not studying due to fear. Therefore while it accepts the lack of a release letter from his education provider may have impacted on his ability to enrol, it does not accept due to his lack of effort to resolve the issue, that by that time his purpose of being in Australia was to study.
46. While at hearing he indicated his mental health improved by March 2020, there is other evidence that he did not seek further enrolment beyond due to his mental health issues. However of concern as to this being the reason he could not enrol in this period due to mental health issues was his evidence at hearing that he worked from September 2020 throughout the period of non-enrolment, including to November 2022. The Tribunal is of the view that if he were able to work in this non-enrolment period he would be able to enrol and study, if his purpose of being in Australia was to study. This undermines that his mental health issues affected his ability to study and undermines his claim his purpose was to study in this period.
It was open for the Tribunal to find that it did not accept that the applicant’s purpose for staying in Australia during his period of non-enrolment was to study. It is also of significance that although the applicant stated that his mental health had improved as at March 2020 when he returned to live in Brisbane, he nonetheless did not enrol in a course of study over the next 2 year and 8 months period.
The Tribunal considered at length the circumstances surrounding the applicant’s stay in Australia whilst not enrolled in a course of study. Submissions to the contrary were without merit. [1] From [37] – [70] of its reasons, the Tribunal addressed in detail the applicant’s circumstances by reference to the following considerations:
[1] Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR
a)The purpose of the applicant’s travel and stay in Australia, whether the applicant has a compelling need to travel or remain in Australia;
b)The extent of compliance with visa conditions;
c)Degree of hardship that may be caused (financial, psychological, emotional or other hardship);
d)Past and present behaviour of the visa holder toward the Department;
e)Whether there would be any consequential cancellations under s. 140 of the Act;
f)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;
g)Whether Australia’s international obligations, including non-refoulement and best interests of the children as a primary consideration would be breached as a result of the cancellation;
h)Any other relevant matter.
Secondly, the Tribunal at [39] and at [45] – [48] inclusive considered the applicant’s claims concerning COVID but dismissed them. It did not accept that COVID was a reason why the applicant had failed to maintain full enrolment in a course of study over a very long period of time. It was also open for the Tribunal to find that the applicant’s excuse of not being able to access emails as a reason for his non-enrolment in a complying course of study was implausible. It was open for the Tribunal to doubt the applicant when he said that his main reason for remaining in Australia was for the purpose of studying. There was ample objective evidence of his having the contrary intention of not remaining in Australia only temporarily.
At [70] – [73] of its reasons, the Tribunal found as follows:
70. He repeated that the lack of enrolment arose because of his mental health issues and if it was today he would be studying in Australia. The Tribunal has considered above and has not accepted his mental health issues resulted in the cancellation of the COE and lack of enrolment from February 2020 to November 2022.
71. The Tribunal has considered the applicant's circumstances individually and cumulatively. The Tribunal is satisfied that there are few aspects that are favourable to the applicant. It has considered the hardship on him and the reasons he claims led to the non-enrolment as well as his claims he is in Australia to study.
72. The Tribunal is mindful of the seriousness of breaching a visa condition and remaining in Australia on a student visa for a considerable period without studying or maintaining enrolment. Further, the cancellation of the visa is the intended consequence of breach of the relevant condition. Overall, the Tribunal considers that the limited aspects favourable to the applicant do not outweigh the reasons to cancel the visa. The breach of condition 8202(2) is significant as that condition goes to the core purpose of the grant of a student visa, namely to study in Australia.
73. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
The Tribunal carefully considered the applicant’s claims both individually and cumulatively. It engaged intellectually in such claims but acted reasonably in rejecting them.
The applicant failed to establish jurisdictional error on the part of the Tribunal.
The grounds of review are without merit and are dismissed.
The Court will hear the parties as to costs.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 4 June 2025
593 at [47].
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