1934930 (Migration)

[2020] AATA 1521

1934930 (Migration) [2020] AATA 1521 (4 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1934930

MEMBER:T. Quinn

DATE:4 February 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 04 February 2020 at 3:00pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – enrolment in a higher level registered course – applicant changed to lower level related courses – completion of lower level studies – avenue of entry to degree course – studying Nursing to improve the standard of health care in Nepal – no period of non-enrolment or failure in Australia – decision under review set aside

LEGISLATION

Migration Act 1958, ss 116, 338, 347
Migration Regulations 1994, Schedule 8 Condition 8202

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 9 December 2019 made by a delegate of the Minister for Home Affairs (‘the delegate’) to cancel the applicant’s Subclass 500 (Student) visa (‘the current visa’) under section 116(1)(b) of the Migration Act 1958 (‘the Act’).

2. The applicant was granted the current visa on 20 December 2016.[1]  The applicant is from Nepal and initially came to Australia on a package of Early Childhood Education and Care courses but with an underlying hope to study nursing (such intention having been explained in detail in her submissions to the Department dated 8 November 2019).[2]

   [1]           See delegate’s decision.

   [2]           See delegate’s decision and applicant’s submissions dated 8 November 2019 in the Department File.

3. On 9 December 2019, the delegate cancelled the current visa on the basis that the applicant had failed to comply with a condition of the current visa as required by subsection 116(1)(b) of the Act, namely that the applicant had not complied with a condition of their visa. In this case, the applicant breached subclause 2(b) of condition 8202 of his visa in that she failed to maintain enrolment in a registered course that, once completed, would provide a qualification from the Australian Qualifications Framework (‘AQF’) that was at the same level as, or at a higher level than, the registered course in relation to which the visa was granted. [3]  The applicant did not comply with this condition of her visa from 29 August 2017 to 9 December 2019.[4]  A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application.

   [3] As required by condition 8202(2)(b) of the Migration Regulations 1994 (‘the Regulations’).

   [4]           See delegate’s decision.

4. On 10 December 2019, the applicant applied for a review of the delegate’s decision with this Tribunal pursuant to sections 338(3) and 347 of the Act.

5. The applicant appeared before the Tribunal on 3 February 2020 to give evidence and present arguments.  The Tribunal also received oral evidence from her friend [Mr A].  The Tribunal hearing was arranged to be conducted with the assistance of an interpreter in the Nepali and English languages but the applicant and her witness requested that the hearing proceed in English.  The interpreter remained in the room for the duration of the hearing and available to assist if necessary.

6. The applicant was assisted in relation to the review by their registered migration agent but their migration agent did not attend the hearing.

7. The Tribunal has had regard to all the information before it, including the Department File, all information and evidence provided by the applicant to the Tribunal, including material provided on the day of the hearing.

8. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   STATUTORY FRAMEWORK

9. The issue in this case is whether the applicant, as the holder of a student visa, has breached condition 8202 of the Regulations. If so, the ground for cancellation is made out and the issue then becomes whether the visa should be cancelled pursuant to section 116(1) of the Act.

10. Under section 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 subsection 116(1)(b) of the Act. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Does the ground for cancellation exist?

11. A visa may be cancelled under section 116(1)(b) of the Act if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8202 of the Regulations attached to the applicant’s visa. This condition requires that the applicant:

    a.be enrolled in a registered course, or in limited cases,  a full time course of study or training and that the registered course be undertaken at the required AQF level: 8202(1) and (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

    c.has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).

12. In the present case, the applicant’s visa was cancelled on the basis that the applicant was not enrolled in a registered course at the required AQF level.

13. The applicant was enrolled in a Bachelor of Early Childhood Education and Care at AQF level 7.  This enrolment was cancelled on 29 August 2017 and the applicant was not enrolled in a full time registered course of study at AQF level 7 or above from that date until the date her visa was cancelled on 9 December 2019. 

14. The applicant has at all times acknowledged and accepted that there are grounds for cancellation.[5]

    [5]           See delegate’s decision, submissions from the applicant and applicant’s evidence at hearing.

15. For these reasons, the Tribunal is satisfied that the ground for cancellation in section 116(1)(b) exists. As that ground does not require mandatory cancellation under section 116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion to cancel the visa

16. 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 visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

17. The applicant gave evidence and made detailed written submissions about the purpose of her travel to Australia expressing her passion for the field of nursing and her desire to improve the standard of health care in her home country.  She provided a thorough comparison of the different educational and practical standards between the study and practice of nursing in Australia as compared to Nepal, providing a personal example of the loss of a relative due to negligent health care in Nepal.

18. The applicant has completed a Certificate III in Early Childhood Education and Care and a Certificate IV in Ageing Support and has now commenced a Diploma of Nursing.  She stated she is half way through this course and provided an updated confirmation of enrolment for same at hearing with a completion date of November 2020 at which time she has indicated she would like to complete a Bachelor of Nursing.  She made submissions that she has enrolled in and is undertaking the Diploma of Nursing as an avenue of entry into the Bachelor of Nursing.

19. The applicant has not had any period of non-enrolment or failure to make adequate course progress since her arrival onshore.  She has provided a reference letter to the Department from her course provider in the Diploma of Nursing dated 8 October 2019 which states she attends her course and is a good, dedicated student.  This is to her credit.

20. The applicant gave evidence that she wishes to complete her Bachelor of Nursing in Australia, explore options to remain onshore to practice as a nurse for a short time and then return to Nepal to try to implement her learning from a base level up.

21. The applicant stated that if she cannot remain in Australia and complete her studies she will be deprived of achieving the outcome she wants in her life, she may become depressed and low and that may cause her family to become low as they want her to do more and become more.  The applicant also suggested that the quality of her education and career progression would be severely negatively impacted if she completes a Bachelor of Nursing in Nepal rather than Australia.  

22. The Tribunal understands that a visa cancellation can be disappointing for visa holders and their families but does not consider this alone constitutes a compelling need to remain in Australia.  The Tribunal accepts the applicant does wish to study.  The Tribunal also notes that the applicant was forthright with the Tribunal in her evidence that she could study this course in Nepal but that it would not offer her the same level of benefit.  The Tribunal considers this factor is finely balanced and that the evidence against cancelling the applicant’s visa is slightly greater than the evidence in favour of cancelling the applicant’s visa in the matters described in paragraphs 19-23.

    Circumstances in which ground of cancellation arose

23. The applicant gave evidence and made submissions that she was misled by migration agents in relation to her breach of her visa condition.  She stated that she had always wanted to study nursing and that her initial study in Early Childhood Education and Ageing Support were both with a view to ultimately transferring to a nursing study stream.  The agent who assisted her in enrolling in the Ageing Support course appeared to have been particularly problematic, enrolling her in this course for a duration of over twelve months at a cost of $16,000AUD when she came to know later that the same course could have been undertaken at considerably less cost in considerably less time.  Her evidence in this regard was corroborated by her witness, [Mr A] (who had been absent for the applicant’s own oral evidence).  The difficulties faced by the applicant with her migration agent are very unfortunate.  The applicant gave evidence that this agent also did not inform the applicant that she was required to maintain enrolment in and ACF Level 7 course and it was upon enrolling her in the Ageing Support course that the applicant also became un-enrolled in the requisite Level 7 course.  The applicant became aware that she was breaching her visa conditions in 2018 and sat two English exams to endeavour to obtain enrolment in to a Bachelor of Nursing but on both occasions did not achieve a high enough score.  It was her subsequent intention then to complete a Diploma of Nursing which would provide an alternative avenue of entry into a Bachelor of Nursing.

24. The Tribunal is troubled by this evidence, whilst the Tribunal acknowledges the applicant’s age ([age] years and [age] years at the time of breach) and reliance upon migration agent advice; it is at all times a visa holder’s obligation to ensure they are complying with the conditions of their visa.  Of greater concern to the Tribunal is the fact that the applicant was aware of her breach for a considerable time prior to her visa being cancelled, a period of approximately twelve months.  When asked what other action she took about this, after becoming aware, outside of sitting the English tests and enrolling in a Diploma of Nursing, she did not give evidence of any particular steps and said she was stressed and busy with her studies. 

25. However, the applicant also gave evidence that she was diagnosed with [a medical condition] in November 2018, and returned home for five weeks in December 2018 to recover.  [Mr A] corroborated this evidence and it was also supported by a medical report provided after the hearing.  The applicant was able to continue to study and complete her Ageing Support Certificate during her illness – this is to her credit and indicates she is a genuine, committed student.  The medical report (printed 3 February 2020) to support this diagnosis describes her symptoms, including fever and coughing, her treatment which has included periods of isolation, regular attendances at hospital and a number of different medications.  The applicant did not rely on this medical condition to excuse her breach of her visa and did not allow it to impact her study progress as she commenced her Diploma of Nursing in February 2019.  She did give evidence that she continued to work throughout this period (outside of the times she was required to be isolated) but on balance, the Tribunal considered the applicant has demonstrated great humility and strength and was very forthright in her evidence and submissions in this regard.

26. The Tribunal considers the applicant’s health difficulties, in combination with her study load and attempts to achieve the requisite English test results a considerable factor against cancelling the applicant’s visa.  This is particularly significant given the applicant’s young age and distance from her family while dealing with these issues.  On the other hand, it was open to the applicant to contact the Department, upon becoming aware that she was breaching her visa conditions and enquire about whether downgrading to a lower AQF level was possible.

27. The Tribunal found the applicant’s evidence persuasive and considers she genuinely wishes to complete her studies and return to her home country to fulfil her career goal.

28. The Tribunal empathises with the applicant’s personal circumstances during her breach period and ultimately has decided to give weight against cancelling the applicant’s visa in this regard. 

    Extent of compliance with visa conditions

29. The Tribunal notes the applicant’s evidence that she has otherwise complied with all student visa conditions, however, the breach of the condition associated with the current visa is extensive, being fifteen months.  The Tribunal considers this a significant breach and gives weight in favour of cancelling the applicant’s visa in this regard.

    The degree of hardship that may be caused to the visa holder and any family members

30. The Tribunal refers to paragraph 23 above in this regard and the future study and employment consequences as well as the personal consequences within the applicant’s family which will be faced if her visa is cancelled. 

31. The Tribunal accepts that the cancellation of a visa is disappointing.  It also accepts that a significant amount of money is invested in a person in order to set them up in a country to live independently in order to study.

32. The Tribunal recognises that the hardship is felt by family members who may also feel let down and disappointed.

33. The Tribunal is, however, mindful of the seriousness of obtaining a student visa and then remaining in Australia and breaching a condition such as non-enrolment.  Whilst appreciating the hardship the applicant and his family may face regarding a cancelled visa, it does not outweigh the breach.  The Tribunal finds that the factors for and against cancelling the visa in this regard are finely balanced.

    The visa holder’s past and present behaviour towards the Department

34. There is nothing before the Tribunal to indicate any adverse conduct by the applicant to the Department and as such the Tribunal gives this some weight against cancelling the applicant’s visa.

    Whether there are persons in Australia whose visas would, or may, be cancelled under section 140 of the Act

35. This is not relevant to the applicant.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, 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

36. If the current visa is cancelled, this will result in the following:

    a.the applicant will become an unlawful non-citizen and liable to detention under section 189 and removal under section 198 of the Act;

    b.the applicant will have limited options to apply for further visas in Australia;

    c.the applicant will fall within the criteria whereby a penalty for the breach of condition may be imposed.  The applicant could therefore be subject to a three (3) year exclusion period where they will not be eligible to have any temporary visa application approved if they apply for a visa that requires Public Interest Requirement 4013 to be met.

    I give little weight to this consideration in favour of the applicant because:

    ·these are the intended consequences of the legislation when a visa is cancelled under these grounds;

    ·it reflects the seriousness with which the Department takes this type of cancellation ground;

    ·the applicant will be eligible to apply for a bridging visa while they make arrangements to depart Australia and therefore the likelihood of detention is only in the event that they do not co-operate in applying for a bridging visa.

    Australia’s international obligations

37. There is nothing before the Tribunal to suggest that the cancellation of the current visa would breach any international obligations.  The Tribunal places no weight on this in favour of or against the applicant.

    Any other relevant matters

38. The applicant presented as honest to the Tribunal and has remained enrolled and making adequate course progress for the duration of her time onshore, despite a difficult period with her health and seems genuinely passionate about her field of study and improving the healthcare system in Nepal.  The Tribunal also note that that applicant will not be able to complete the Bachelor of Nursing in Australia without applying for a new student visa upon completion of her Diploma of Nursing as her current student visa will have expired by that time.  The Tribunal acknowledges these matters in coming to its decision. 

    CONCLUSION

39. Considering the circumstances as a whole, the Tribunal concludes the decision to cancel the applicant’s visa should be set aside.

    DECISION

40. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

    T. Quinn
    Member