Adhikari (Migration) - [2024] AATA 3392

Adhikari (Migration) [2024] AATA 3392 (31 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Biplov Adhikari
Mrs Shrista Bhujel
REPRESENTATIVE:  Mr Yogendra Poudel (MARN: 1797600)
CASE NUMBER:  2307598
HOME AFFAIRS REFERENCE(S):          BCC2022/3904576
MEMBER:Christine Kannis
DATE:31 August 2024
PLACE OF DECISION:  Perth
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 500 (Student) visa.
The Tribunal has no jurisdiction with respect to the other applicant.

Statement made on 31 August 2024 at 1:08pm
CATCHWORDS
MIGRATION – cancellation Student (Temporary) (Class TU) visa – Subclass 500 (Student) –not enrolled in registered full-time course – discretion to cancel visa – previous enrolments and cancellations of courses in different subject areas – COVID pandemic and financial hardship – applicant’s attempts to enrol not possible because previous provider had not released due to non-payment – later enrolment, first course now completed and second in progress – member of family unit – consequential cancellation with no jurisdiction to review – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), 140(1), 348, 359AA
Migration Regulations 1994 (Cth), r 1.03, Schedule 8, condition 8202(2)(a)
Education Services for Overseas Students Act 2000 (Cth), s 19
CASES
Liu v MIMIA [2003] FCA 1170
Plaintiff M64/2015 v MIBP [2015] HCA 50
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 29 May 2023 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s Subclass 500 (Student) visa under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that the first named applicant (the applicant) failed to comply with a condition of her visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
For the purposes of the Tribunal’s jurisdiction under s 348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The other visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s 140(1) of the Act. As no decision was involved in the visa cancellation under s 140(1), the Tribunal has no jurisdiction with respect to the other applicant.
The applicants appeared before the Tribunal by MS Teams on 13 August 2024. The Tribunal also received oral evidence from the second named visa applicant, Mrs Shrista Bhujel. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.
The applicants were represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant, as the holder of a student visa, has…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Adhikari (Migration)

Details

AGLC: Adhikari (Migration) [2024] AATA 3392
Case: [2024] AATA 3392
Decision Date: 31 August 2024

CaseChat Overview and Summary

This matter concerned the cancellation of a Subclass 500 (Student) visa held by the applicant, Mr Adhikari. The cancellation was based on the applicant's failure to maintain enrolment in a registered full-time course, a condition of his visa. The applicant's partner, a member of the family unit, also had their visa cancelled as a consequence. The Administrative Appeals Tribunal was required to determine whether the discretion to cancel the applicant's visa should be exercised, considering the applicant's circumstances.

The primary legal issue before the Tribunal was whether, in light of the applicant's explanation for his non-compliance with visa conditions, the decision to cancel his visa was appropriate. The applicant contended that his failure to maintain enrolment was due to a combination of factors, including financial hardship exacerbated by the COVID-19 pandemic, delays in salary payments, and significant difficulties in obtaining a release from his previous education provider, Skyline College. He argued that he had made genuine attempts to enrol in new courses and complete his studies, but was hindered by the previous provider's lack of cooperation and communication.

The Tribunal considered the applicant's detailed account of his efforts to comply with his visa obligations. It acknowledged the impact of the pandemic and the challenges he faced in paying tuition fees, which led to the cancellation of his initial Confirmation of Enrolment (CoE). The Tribunal noted the applicant's persistent attempts to secure a release from Skyline College and to enrol in new courses, highlighting the delays and obstacles he encountered. On balance, and after considering all the circumstances, the Tribunal concluded that the visa should not be cancelled. The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 500 (Student) visa. The Tribunal noted it had no jurisdiction with respect to the other applicant.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Tribunal recognises that the cancellation of the visa is a significant matter and on balance, and considering the circumstances as a whole, the Tribunal concludes that the visa in this case should not be cancelled.DECISION The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 500 (Student) visa. The Tribunal has no jurisdiction with respect to the other applicant.Christine KannisMemberATTACHMENTMigration Regulations 1994…Schedule 88202(1) The holder must be enrolled in a full time course of study or training if the holder is:(a)a Defence student; or(b) a Foreign Affairs student; or(c) a secondary exchange student.(2) A holder not covered by subclause (1):(a) must be enrolled in a full time registered course; and(b) subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and(c) must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:(i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;(ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.(3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:(a) is enrolled in a course at the Australian Qualifications Framework level 10; and(b) changes their enrolment to a course at the Australian Qualifications Framework level 9.

Ratio Decidendi

Legal Principle Established

Applicant’s written submission dated 12 December 2023 which included the following information:·He did not respond to the NOICC due to an oversight. ·Due to financial hardships brought about by the COVID-19 pandemic and delays in salary payments from Mastercare Cleaning, he encountered difficulties paying tuition fees on time. As a consequence, his CoE was cancelled on 10 February 2022. ·He applied to the Victorian Institute on 16 March 2022, receiving an offer letter and making a payment of $3000. His course was to commence on 11 April 2022. ·On 13 April 2022 the Victorian Institute advised they were unable to issue a CoE as his previous education provider, Skyline College, had not released him from the course. He contacted Skyline College multiple times by phone and email on 29 April 2022. An email dated 29 April 2022 from the applicant to sso@sic.edu.au requesting to be released from Provider Registration and International Student Management System (PRISMS) was provided.·During this period he continued his studies at the Victorian Institute online. On 26 May 2022, he received an email from the Victorian Institute which advised as follows:We’ve tried to contact you several times unfortunately you didn’t receive it. The reason for this mail is to inform you that you must visit the college tomorrow with the Statutory declaration or else strict action will be taken. Please be mindful this is an urgent matter.Your swift response will be much appreciated.·On 26 July 2022, he visited Skyline College and completed a Release Application Form requesting release from the Certificate III in Light Vehicle Mechanical Technology course because he wished to transfer to another institute/ provider He was frustrated and felt unfairly penalized for something that was not his fault. He had done everything he could to comply with his visa condition and to continue his studies but was let down by Skyline College’s lack of cooperation and communication.·He sought assistance from a migration agent and secured an offer from Choice Business College on 27 September 2022 however on 7 October 2022, he was notified that they could not issue a CoE because Skyline College had not released him from the course. He contacted Skyline College by email on 11 October 2022. An email dated 11 October 2022 from the applicant to sso@sic.edu.au stating he has submitted and done everything and requesting release PRISMS was provided.·On 17 October 2022, he received a reply from his Skyline College advising that his release application could not be processed further as he was non-financial as per their accounts team update. He was advised that in order to process his request he must pay the outstanding 2021 and 2022 fees. He was confused by this demand and did not understand why they did not tell him this before and why they waited for so long to respond. ·He contacted Choice Business College again and they sent a new offer letter on 16 November 2022. He received a CoE from Choice Business College on 21 November 2022 and started the course on the same day. The course was supposed to end on 19 November 2023 however on 29 May 2023 his visa was cancelled. ·He re-applied to Choice Business College receiving an offer on 22 June 2023 and is currently pursuing studies with a course commencement date of 24 July 2023 and an end date of 21 July 2024. ·He requests the Tribunal's understanding and consideration of the exceptional circumstances surrounding his visa cancellation. The difficulties faced, particularly exacerbated by the global pandemic and the actions of his previous education provider, played a significant role in these challenges. ·He is keen to resume his studies in Australia and to complete the course. He has invested a lot of time, money and effort in pursuing his education and does not want to give up on him dream .