Neupane v Minister for Immigration and Citizenship [2025] FedCFamC2G 1400

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (as it was then) (the Tribunal) dated 7 August 2024, affirming a decision of a delegate of the first respondent to cancel the applicant's Subclass 500 (Student) visa (the visa) under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act).
2. For the reasons set out below, the application must be dismissed.

1. The applicant is a citizen of Nepal.
2. The applicant was granted the visa on 26 March 2021, with a stay period up to 29 February 2024 in order to undertake studies in a Certificate III in Light Vehicle Mechanical Technology.
3. On 27 January 2023, the Department of Home Affairs (the Department) sent to the applicant by email, a Notice of Intention to Consider Cancellation (NOICC), as it appeared there were grounds for cancellation of the visa under s 116. The Provider Registration and International Students Management System (PRISMS) had indicated that the applicant did not hold any enrolments in a full-time registered course of study from 15 November 2021 to 23 January 2023. The applicant had therefore not complied with subclause 2(a) of condition 8202.
4. On 31 January 2023, the applicant responded to the NOICC, attaching payslips; Confirmation of Enrolment (CoE) for Certificate IV in Kitchen Management with start date 13 February 2023 to end date 11 August 2024; a medical certificate dated 28 January 2023; and a statement by the applicant.
5. The applicant's statement provided the following (Adopted from the first respondent's submissions)
   • He was enrolled in the course Certificate III in Light Vehicle Mechanical Technology at Lead College. The course started on the 25 October 2021 and was supposed to end on the 23 April 2023.
   • There were compassionate and compelling circumstances leading to the non- compliance.
   • The COVID-19 pandemic, the travel restrictions, their inability to travel overseas to visit their family in their home country, Nepal, caused [him] mental distress.
   • Since November 2021, as a result of the isolation from COVID-19 lockdowns, he had been having mental health issues, which caused him not being able to continue his studies.
   • After extensive counselling with Doctor Elsadig Mohammed of Lakemba Medical Services, his mental health conditions have improved, and he is planning to resume his studies.
   • He has re-enrolled in a Certificate IV in Kitchen Management course, which is due to commence on 10 April 2023.
6. On 15 February 2023, the Department sent the applicant a notification of cancellation.
7. On 21 February 2023, the applicant applied to the Tribunal for review and nominated a Registered Migration Agent. The applicant was invited to attend a hearing scheduled for 20 June 2024.
8. The applicant's Migration Agent provided a completed Response to Hearing Invitation form and submissions dated 17 June 2024, enclosing a record of results from Western Sydney College for the qualification of ICT50418 Diploma of Information Technology Networking with an issue date 4 December 2020, and a report dated 31 January 2023 from a Psychologist.

1. The issue before the Tribunal was whether the applicant, as the holder of a student visa, breached condition 8202 of Schedule 8 of the Migration Regulations 1994 (Cth) (the Regulations). The consequence of which is a possible cancellation of the visa under s 116(1) of the Act.
2. Condition 8202 relevantly states and requires that the applicant:
   • be enrolled in a full-time registered course: 8202(2)(a)
   • maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than, the course in relation to which the visa was granted: 8202(2)(b)
   • has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and
   • has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).
3. The applicant conceded to the Department, the Tribunal and through oral evidence at the hearing that he was not enrolled in a course of study between 15 November 2021 and 23 January 2023. The Tribunal found that the applicant did not comply with condition 8202(2)(a) and therefore the ground for cancellation in s 116(1)(b) did arise.
4. The Tribunal had regard to the circumstances of the case in considering its discretion to cancel the visa and took into account the matters raised in the Department's Procedural Instruction 'General Visa Cancellation Powers'.
5. In reference to the purpose of the visa holder's travel and stay in Australia and whether the visa holder has a compelling need to travel to or remain in Australia, the applicant stated the following:
   • He wished to resume his education and had hoped to do this whilst his visa application was under review, however, this was not permitted under the bridging visa. The applicant maintained that he needed to obtain Australian qualifications prior to returning to Nepal.
   • The Tribunal considered the study history of the applicant at [19], and noted that his previous enrolments were cancelled due to non-commencement of studies, that he had obtained a new enrolment in the Certificate IV in Kitchen Management and a Diploma of Hospitality prior to the cancellation of his visa, and that he had changed his study pathway several times. The applicant stated to the Tribunal that he needed Australian qualifications. He cited that he was only 20 years of age when he arrived in Australia, experienced homesickness and did not have the correct mental state to continue with studies.
   • At [30], the applicant stated that he was confident in his choice of course (hospitality) and that he had the right mental attitude to complete his studies through the assistance of his doctor, who had helped him.
6. At [21], the applicant claimed it was his intention to return to study after not engaging in any study for approximately fourteen months prior to the cancellation of his visa, however, the Tribunal noted the applicant only obtained enrolment after being contacted by the Department regarding his contact details. The Tribunal found the applicant's student record to be "unremarkable", and it was not satisfied that the several enrolments and cancellations were addressed by the medical evidence advanced.
7. It weighed this factor in favour of cancellation of the visa.
8. The Tribunal noted that the duration of the applicant's non-compliance with the visa conditions, being November 2021 to January 2023, was a matter of considerable concern. It weighed this in favour of cancellation.
9. At [27] - [32], it acknowledged the degree of hardship that may be caused by the cancellation of the visa and, after consideration, gave this factor some weight against the cancellation.
10. In assessing the circumstances in which the grounds for cancellation arose, it had regard to the applicant's submissions to the Department that the COVID-19 pandemic impacted him greatly. Whilst accepting the impact it had on the applicant, it noted that the relevant period of the applicant's non-compliance was when many of the restrictions had eased. It noted that the applicant did not take any opportunity to visit his family prior to the cancellation of the visa, despite his concern about returning back to his family and not being near them during the pandemic.
11. The Tribunal accepted that the applicant took steps to address his mental health condition after the potential of the visa cancellation became known, however, it noted that the Practitioner's reports appeared to be retrospectively reporting on the symptoms conveyed by the applicant. It was not satisfied the evidence demonstrated the condition of the applicant at the time the enrolment ceased [39]. The payslips provided indicated the applicant was able to maintain 38 hours of employment per week despite his psychological conditions in January 2023. The Tribunal was not satisfied that the applicant could not have sought assistance for his mental health conditions sooner, and that the duration for which he was in breach of his visa conditions was outside the control of the applicant.
12. The Tribunal gave this factor low weight in favour of not cancelling the visa.
13. The Tribunal noted that there was no evidence before it that the applicant had not been cooperative in his dealings with the Department and gave this some weight in favour of not cancelling the visa [41] - [42].
14. At [44] - [47], the Tribunal considered whether there were mandatory legal consequences that would arise as a result of the visa cancellation. It accepted at [56] that cancellation would have further consequences, and it would limit the applicants' options to immediately return to Australia or apply for a different kind of visa. It gave this factor neutral weight.
15. At [56] the Tribunal concluded:

The Tribunal has considered all of the evidence and the relevant circumstances of the applicant. In weighing these considerations there are limited aspects that are favourable to the applicant. Although it is accepted that the applicant was psychologically impacted by the pandemic and the pandemic was outside his control, it is not satisfied that it is demonstrated that the applicant's non-compliance with his visa condition and the duration of his non­ compliance was outside his control. The Tribunal has placed a low weight on the evidence before it in relation to the circumstances giving rise to the cancellation. It is not persuaded by the material advanced by the applicant that it should be greater than this. 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. It is accepted that the applicant wishes to remain in Australia and he will experience some hardship if his visa remains cancelled, yet the for the reasons set out above, it is not demonstrated that he has a compelling need do so. The other considerations are generally of low or neutral weight, and the Tribunal is not satisfied that they weigh in favour of the exercise of the discretion not to cancel.

1. The Tribunal affirmed the decision to cancel the applicant's student visa.

1. The applicant advances three grounds of judicial review contained in an Originating Application filed on 5 September 2024. The grounds are as follows (less particulars):
   1. Tribunal did not consider relevant information.
   2. Tribunal did not consider the impact of mental health issues.
   3. Tribunal identified a wrong issue.

1. The applicant appeared before the Court unrepresented. He was not assisted by an interpreter. The Court was satisfied that the applicant's English language skills were more than sufficient for him to actively participate in the hearing.
2. Prior to the hearing commencing, the Court ensured that the applicant had been provided with a copy of the relevant Court books and that the first respondent's written submissions had been provided to him and he had read them.
3. The Court also ensured the applicant had access to a pen and paper so he could take notes during the course of the hearing should he so wish to.
4. At the commencement of the hearing, the Court explained it was undertaking judicial review, not merits review, and the difference between the two types of review. The Court also explained the procedure by which the hearing would be undertaken.
5. Despite Court orders, no written submissions or other material were provided to the Court by the applicant in support of his case. The applicant told the Court that after he came to Australia, he was missing home, then the pandemic hit, and it was the lowest point in his life. The applicant stated that everything just fell apart. He struggled physically and mentally. Even though he was worried about his parents, he did not have the financial resources to visit them.
6. The Court discussed the applicant's academic progress with the applicant. He confirmed that he had completed only one course of study since his arrival in Australia in 2017. Even in relation to that course, he did not possess a formal certificate of completion for that course.
7. The applicant stated he wants to be able to go home to Nepal with some qualification and would like to be allowed the opportunity to do so.
8. At the conclusion of the first respondent's oral submissions, the applicant was asked if he wished to state anything in reply. He answered "No".

1. As to ground one particular (a), it is argued that the Tribunal considered the applicant's mental health issues at [32], [38] and [39], and noted that the applicant's payslips demonstrated that he maintained his employment for up to 38 hours per week despite the psychological condition.
2. Particular (b) alleges the Tribunal did not consider relevant information, including the applicant's employment in the hospitality industry and his enrolment in a Certificate IV in Kitchen Management and Diploma of Hospitality Management, and how it would assist him to gain employment in Nepal.
3. The Tribunal identified the relevant period in which the CoE's were granted for the course at [15], and noted that the applicant only obtained enrolment after being contacted by the Department requesting confirmation of his contact details. The Tribunal considered the applicant's overall circumstances in regard to his enrolment in courses of study and whether the applicant genuinely desired to obtain Australian qualifications at [19].
4. The Tribunal acknowledged the applicant's circumstances but was not satisfied that the applicant would be without employment opportunities at [64].
5. Ground one particular (c) is an allegation that the Tribunal did not consider that the applicant completed one course of study before the pandemic. The Tribunal only considered the period of time which related to the applicant's second student visa and the extent of the applicant's compliance with the visa conditions during that period.
6. By ground two, the applicant argues that the Tribunal did not consider the impact of mental health issues. It is submitted that the Tribunal was entitled to consider whether the applicant had taken the opportunity to visit his family outside the relevant period. The Tribunal considered each of the factors it had identified in the subheading of its decision.
7. Insofar as the applicant alleges the Tribunal identified the wrong issue by not focusing on his active enrolments, the first respondent submits that the Tribunal applied the nine matters that are set out to be considered when deciding a visa cancellation under s 116 as per the Procedural Advice Manual guidelines. The first respondent placed reliance on Maazuddin v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1349 at [41].
8. Ultimately, the Tribunal's findings were open to it for the reasons that it gave.

1. In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17], the task of a court conducting judicial review was described in this manner:

... an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government, here in the form of a decision of the Minister. The Court does not consider the merits or wisdom of the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.

1. First, the Court is reasonably satisfied that the Tribunal correctly found at [12] - [16] that a ground for the cancellation of the applicant's visa existed. That ground was his non-enrolment in a course of study between 15 November 2021 and 23 January 2023.
2. Having found that a ground for cancellation existed, the Tribunal then embarked on an orthodox consideration of whether or not the applicant's visa should be cancelled by reference to the matters set out in the Department's Procedures Advice Manual (PAM 3), 'General Visa Cancellation Powers'. This involved considering each factor together, with the evidence before the Tribunal, and attaching appropriate weight to that factor either in favour of the applicant or against him in terms of whether his visa should be cancelled.

1. Ground one is a complaint that the Tribunal did not consider relevant information. Particular (a) is a claim that the applicant explained his mental health issues to the Tribunal and that at [34], the Tribunal member did not focus on the mental anxiety diagnosis, but rather focused on the fact that the applicant delayed in getting treatment from Dr Mohammed.
2. I am satisfied that the Tribunal did consider the applicant's mental health issues at [32]. The Tribunal accepted that the applicant had experienced anxiety and depression in the past, which would require treatment. The Tribunal further accepted that if the applicant's visa remains cancelled, it would have an impact on his mental state and cause further psychological hardship. The Tribunal did not accept that if the applicant's visa remains cancelled, it would interrupt his ongoing treatment or that he would not be able to access treatment in the future in his home country.
3. The Tribunal noted at [38] - [39] that the applicant appeared to have only consulted his medical practitioner and received a referral to a Psychologist, following the receipt of a NOICC of the applicant's visa. The Tribunal noted that the medical reports appear to merely detail what the applicant states his symptoms were as at the time he was not enrolled in a registered course of study. During this particular time, while the applicant was not enrolled, he was apparently able to work up to 38 hours per week.
4. The Tribunal ultimately found that it would give some weight against the cancellation of the applicant's visa on the basis of the degree of hardship that might be caused. In relation to the circumstances under which the grounds for cancellation arose, the Tribunal gave this low weight in favour of not cancelling the applicant's visa.
5. I am not satisfied that the Tribunal's conclusions as to the evidence given by the applicant and the weight that was given to those matters was legally unreasonable, illogical or irrational. The weight to be given to the various factors is a matter for the Tribunal. It is not the role of a Court to substitute its view in relation to factual matters for that of the Tribunal. I am not satisfied that the Tribunal did not consider the applicant's mental health issues. Ground one particular (a) has no merit.
6. Ground one particular (b) is a claim that the applicant explained that he was working in the hospitality industry and would undertake a Certificate IV and diploma courses, which would help him get employment in his home country. The Court notes that these courses were aligned to the future, and did not address his past non-compliance with the condition of his visa that he remain in full-time study. The applicant's desire to undertake new enrolments in kitchen management and hospitality were considered by the Tribunal at [18] - [22]. The Tribunal noted the lack of academic progress in any course, notwithstanding that he had been enrolled in a number of courses in different fields. Further, the Tribunal was not satisfied that the applicant was required to remain in Australia in order to undertake study in the field of kitchen management and hospitality. The Tribunal concluded that this factor weighed in favour of cancellation of the applicant's visa.
7. I am not satisfied that the Tribunal did not consider how the courses in kitchen management and hospitality would assist the applicant. The conclusion arrived at by the Tribunal, when considering the applicant's entire study history, was open to it on the evidence before it and for the reasons it gave. There is nothing legally unreasonable, irrational or illogical about the conclusion arrived at. Ground one, particular (b) has no merit.
8. Ground one, particular (c) is a claim that the Tribunal did not consider the applicant's study prior to the pandemic and that automotive courses were not his passion, which is why he switched to kitchen management hospitality. I am satisfied that the Tribunal did consider this issue at [15] - [24], noting that the applicant claimed he had completed the Diploma of Information Technology, but he did not pass sufficient units to achieve the award of the qualification.
9. I am satisfied that the conclusion of the Tribunal arrived at that this factor, which was that it weighted this factor in favour of the cancellation of the applicant's visa, was open to it for the reasons it gave. Ground one particular (c) has no merit.

1. Ground two is a claim that the Tribunal did not consider the impact of the applicant's mental health issues. For the reasons set out above, I am satisfied the Tribunal did consider the applicant's mental health issues and at [27] - [33], and gave his mental health issues some weight against the cancellation of his visa. As to the claim that the Tribunal focused on the fact that the applicant had not returned to Nepal, this was a conclusion that was open to the Tribunal to draw based on the totality of the evidence before it.
2. The evidence was that as at the date of the decision, the applicant had not returned to Nepal since his arrival in 2017. This was a legitimate factor to take into account as to whether or not the applicant was in Australia for the purposes of study, or was using a student visa as a means of maintaining residency in Australia. No error arises within this allegation, Ground two has no merit.

1. Ground three is a complaint that the Tribunal identified the wrong issue. The applicant claims the issue was whether not he met the Australian study requirements to have been enrolled in a full-time registered course. The applicant claims he explained his mental health issues and provided certificates of enrolment in kitchen management and hospitality.
2. I am satisfied the Tribunal did take into account the applicant's future study intentions, but correctly focused on the fact that there had been a substantial period of non-compliance with the conditions of his visa, that is he was not enrolled in a registered course of study for approximately 14 months. The Tribunal was also entitled to take into account the fact that the applicant had been enrolled in a number of courses but had not actually successfully completed one course during the entire period of the time that he was in Australia. In these circumstances, the Tribunal was entitled to find that this weighed in favour of cancellation of the applicant's visa. The Tribunal noted the applicant's future intentions but was entitled to find that the circumstances in favour of cancelling the applicant's visa outweighed those of not cancelling it. No error arises, and ground three has no merit.
3. As the applicant is unrepresented, the Court has perused the relevant Court book and associated documentation. The Court is unable to detect any articulated jurisdictional error.

1. As none of the grounds of judicial review have any merit, the application must be dismissed.

I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys.