Adhikari (Migration)

[2019] AATA 5561

Adhikari (Migration) [2019] AATA 5561 (6 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Diwas Adhikari

CASE NUMBER:  1714159

HOME AFFAIRS REFERENCE(S):          BCC2017/1424396

MEMBER:Lynda Young

DATE:6 December 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 06 December 2019 at 10:28pm

CATCHWORDS

MIGRATION – cancellation – Higher Education Sector (Class TU) visa – Subclass 573 (Student) (Temporary) – non-enrolment in registered course – discretion to cancel visa – factors for and against cancellation – circumstances beyond visa holder’s control – mental health – depression following ill-health and death of grandmother in home country – no medical evidence, no evidence of seeking deferment from education provider – hardship to applicant and parents – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 116(1)(b), (3), 119

Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)(a)

CASE

COT15 v MIBP (No 1) (2015) 236 FCR 148

Ibrahim v MHA [2019] FCAFC 89

MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 26 June 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The applicant’s visa, granted on 27 February 2014, was subject to condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations), requiring the applicant to be enrolled in a registered course of study.

3.    On 1 June 2017, the applicant was issued a Notice of Intention to Consider Cancellation (NOICC) under s.119 of the Act, on the basis it appeared he had not complied with visa condition 8202(2)(a) as, on evidence obtained from the Provider Registration and International Student Management System (PRISMS), the applicant had not been enrolled in a registered course of study since 23 September 2016.  The applicant did not respond to the NOICC.

4. On 26 June 2017, the delegate cancelled the visa under s.116(1)(b) of the Act on the basis the applicant, in breach of visa condition 8202(2)(a), had not been enrolled in a registered course of study since 23 September 2016, and the grounds in favour of cancellation outweighed the grounds against cancellation.

5.    The applicant applied to the Tribunal for review of the decision on 3 July 2017, and attached to his application, a copy of the Notice of Cancellation and the Decision Record (application). The issues in the present case are whether the ground for cancellation in s.116(1)(b) of the Act is made out, and if so, whether the visa should be cancelled.

6.    The applicant appeared before the Tribunal on 6 September 2019 to give evidence and present arguments. 

7.    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

ISSUES

8. Under s.116 of the Act, the Minister may cancel a visa if he or he 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)(b).

9. Section 116(1)(b) provides for cancellation of a visa where ‘its holder has not complied with a condition of the visa.’ Visa conditions for each subclass are identified in the relevant part of Schedule 2 to the Regulations, and described in Schedule 8 to the Regulations.

10.      In this case, condition 8202 was imposed on the applicant’s student visa.

11.      Condition 8202, as it applies in this case, is set out in the attachment to this decision.  Relevantly, it requires the applicant:

a.be enrolled in a registered course, or in limited cases, a full time course of study or training: 8202(2)

b.has not been certified by his or his education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and

c.has not been certified by his or his education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).

12. If satisfied the ground for cancellation in s.116(1)(b) is made out then, as the ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa, having regard to matters specified in the Act or regulations that are required to be considered and all information relevant to the exercise of the discretion in the circumstances of the case, including matters raised by the applicant and matters of government policy.

13. There are no matters specified in the Act or the Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. Matters to which the Tribunal has regard in considering whether to exercise its discretion to cancel the applicant’s visa include matters raised by the applicant and the matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, including:

a.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;

b.the extent of compliance with visa conditions;

c.degree of hardship that may be caused (financial, psychological, emotional or other hardship);

d.circumstances in which ground of cancellation arose.  If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control;

e.past and present behaviour of the visa holder towards the department;

f.whether there would be consequential cancellations under s.140;

g.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;

h.whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation;

i.if it is a permanent visa, whether the former visa holder has strong family, business or other ties in Australia;

j.any other relevant matters.

14.      The issues for the Tribunal’s determination in this case are:

a.does the ground for cancellation in s.116(1)(b) of the Act exist?

b.if the ground for cancellation in s.116(1)(b) of the Act exists, should the discretion to cancel the visa be exercised?

EVIDENCE ON THE APPLICATION

15.      The evidence before the Tribunal on this application comprises:

a.documents on the Department’s cancellation file, relevantly, the NOICC;

b.the application, including the attached Notice of Cancellation and the Decision Record;

c.Movement Details Record for the applicant dated 23 July 2019, confirmed by the applicant at hearing;

d.PRISMS summary for the applicant dated 23 July 2019, confirmed by the applicant at hearing;

e.the applicant’s evidence at hearing;

f.Statutory Declaration of Rabin Khadka dated 13 October 2019, Rabin Khadka has known the applicant from childhood, and outlines, in support of his application, how he was affected by the ill-health of his Grandmother in Nepal, and that he wants to finish his degree;

g.Affidavit of Support of Mr Laxman Adhikari (father) and Mrs Amrita Adhikari (mother) dated 26 September 2019, the applicant was affected by the worsening health of his Grandmother, who raised him and unless his visa is granted, he has not able to get enrolment in colleges and university;

h.Letter from the Medical Officer, Damaui Hospital dated 10 June 2016 to certify that Mrs Top Maya Adhikari was admitted and treated;

i.Death Certificate, To Whom It May Concern, dated 11 September 2019, regarding the death of Mrs Top Maya Adhikari on 11 July 2016;

j.Statutory Declaration of Phurba Tamang dated 13 October 2019, Phurba Tamang has known the applicant, and as a close friend, since March 2004 and outlines how he was affected by the on-going ill-health of his Grandmother in Nepal;

k.Relationship Certificate, Vyas Municipality, dated 25 September 2019, Diwas Adhikari as Brother in the household/family unit.

The NOICC

16.      The Department’s NOICC issued 1 June 2017, notified the applicant it intended considering cancellation of his visa as, based on PRISMS evidence, it appeared he had not been enrolled in a registered course of study since 23 September 2016, possibly breaching visa condition 8202(2)(a).  The applicant was invited to provide his written response to the NOICC within five working days, addressing the identified ground(s) for cancellation, reasons why his visa should not be cancelled, the matters the delegate would take into account in considering whether to cancel his visa, being those matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, and any other matter he considered relevant.

The decision

17.      The Decision Record sets out, relevantly, in summary:

a.the applicant was granted a Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa on 27 February 2014, with a stay period to 30 September 2017;

b.the Department’s NOICC issued on 1 June 2017 on the basis of PRISMS evidence that the applicant was not enrolled in a registered course of study since 23 September 2016;

c.the applicant did not respond to the NOICC;

d.during the visa application process, the applicant stated his intended purpose of travel to and stay in Australia was to study;

e.in excess of nine months have passed since the applicant was last enrolled in a registered course of study;

f.there was no evidence the applicant had been non-compliant with visa conditions other than with visa condition 8202;

g.the applicant did not provide any detail regarding hardship that may be caused if his visa were cancelled;

h.the delegate accepted the applicant, if his visa were cancelled:

i.there may be a range of hardships experienced by the applicant as a result of cancellation;

j.may be caused some hardship on being required to depart Australia but may be eligible for a Bridging Visa E, providing time for his to finalise outstanding matters;

k.if he did not voluntarily depart Australia ,would become an unlawful non-citizen and be liable for detention under s189 and removal under s198 of the Act;

l.would be subject to s.48 of the Act, significantly limiting the classes of visa for which he may apply onshore;

m.would be subject to Public Interest Criterion 4013, and may not be granted a temporary visa for three years;

n.the ground for cancellation arose when the applicant ceased enrolment with a registered education provider. The applicant would have been fully aware that he had ceased enrolment and he has had sufficient time to rectify his enrolment status;

o.there was no information regarding the applicant’s past and present behaviour toward the Department that would provide a reason not to cancel the visa;

p.departmental records indicated no other person currently holds a visa as a result of the applicant holding his visa accordingly cancellation of the applicant’s visa would not result in automatic consequential cancellation by operation of law under section 140 of the visa of any other person;

q.there was no information before the Department indicating cancellation of the visa result in a breach of Australia's international obligations;

r.the delegate was satisfied the grounds for cancelling the visa outweighed the reasons not to cancel the visa.

1. Applicant’s Evidence at Hearing

   19.      The applicant’s evidence at hearing, germane to the issues in this case, was, in summary:

   a.he admitted he was not enrolled as set out in the decision, since 23 September 2016;

   b.he had been unable to obtain re-enrolment following cancellation of his visa as no universities would enrol him into a degree course whilst he does not have a student visa. He wishes to re-enrol and complete his Bachelor of Information and Communications Technology;

   c.his biggest regret was that he had suffered depression that had not allowed him to complete his studies;

   d.his visa was cancelled in circumstances where he was suffering a significant depression as a result of the death of his grandparent. The Tribunal raised with the applicant there was no medical evidence supporting that depression, nor was there evidence he had sought deferment from his education provider;

   e.at the time the applicant was suffering the depression, he was living with a friend. The Tribunal asked him to provide supporting information from those close to him, that is his family and friends, in relation to his claim of depression as without it the Tribunal had only the applicant’s assertion;

   f.his parents are supporting him financially and they are investing in his future by doing so. It was difficult for them to afford to send him to Australia;

   g.he has not returned home since his visa was cancelled as he does not wish to cause disappointment to his parents.

   DOES THE GROUND FOR CANCELLATION IN S.116(1)(B) OF THE ACT EXIST?

   Did the applicant comply with Condition 8202?

   20.      To his credit, the applicant frankly admitted to the Tribunal he had not been enrolled since 23 September 2016.  .

   21.      On the evidence before the Tribunal, the applicant was not enrolled in a registered course of study since 23 September 2016.  As a result, the applicant failed to comply with visa condition 8202(2)(a).

   22. Accordingly, the Tribunal is satisfied the ground for cancellation in s.116(1)(b) exists.

   23.      As the ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa.

   SHOULD THE DISCRETION TO CANCEL THE VISA BE EXERCISED?

   Consideration of the discretion to cancel the visa

   24. 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.

   25.      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

   26.      The Tribunal is satisfied the applicant’s intended purpose for his travel to and stay in Australia was study.  The applicant’s evidence consistently maintains this was his intention and the decision record states there is no evidence to the contrary.

   27.      On the evidence before the Tribunal, the applicant was not enrolled in any course of study for nine months since 23 September 2016.

   28.      Student visas are granted for the purpose of non-citizens and non-permanent residents studying towards, and achieving, an educational qualification in Australia.  That purpose cannot be achieved unless the visa holder is enrolled in a registered course of study.  Taken in that context, the Tribunal finds the applicant’s failure to be enrolled in a registered course of study for more than nine months is significant and weighs in favour of cancellation. 

   29.      The Tribunal is not satisfied the applicant’s originally intended purpose for travel to and stay in Australia provides a compelling need to travel to and remain in Australia.  Failing to be enrolled for more than nine months is inconsistent with such need and the applicant has given no evidence suggesting he has any such need.  The Tribunal gives this consideration weight in favour of cancelling the visa.

   The extent of compliance with visa conditions

   30.      Other than his non-compliance with condition 8202(2)(a), there is no evidence before the Tribunal disclosing any instance of the applicant failing to comply with any conditions imposed on his visa.  Although the evidence does not satisfy the Tribunal the applicant breached any other condition imposed on his visa, he was not enrolled in breach of visa condition 8202(2)(a) for more than nine months.  The Tribunal considers that noncompliance is significant and weighs in favour of cancelling the visa.

   Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

   31.      The delegate accepted cancellation of the applicant’s visa may cause a range of hardships to be experienced by the applicant.

   32.      The applicant’s evidence at hearing, which the Tribunal accepts, is the applicant has been unable to obtain enrolment with a first-tier University in Bachelor of Information and Communications Technology subsequent to cancellation of his visa.  Accordingly, the Tribunal finds the applicant has as a result of the cancellation of his visa, found it practically impossible to obtain enrolment of the sort he had prior to cancellation.

   33.      According to the applicant, his parents have faced some difficulty and have used their savings in financing the applicant’s studies in Australia, and he will be subject to both a cultural and parental expectations to financially support of his parents in their retirement years. In the absence of any evidence to the contrary, the Tribunal accepts this evidence and accepts that, in effect, the applicant’s parents have invested into the applicant’s future and the applicant’s future earning potential is a matter that will directly affect the applicant’s ability to care for his parents financially in their retirement years. In other words, unless the applicant completes his qualification, the applicant’s parents' as well as the applicant would find themselves in a less advantageous financial position in future..

   34.      The Tribunal considers these specific hardships weigh against cancellation.

   35. The Tribunal accepts visa cancellation ordinarily results in the visa holder becoming unlawful and liable for detention under s.189 and removal under s.198 unless the visa holder voluntarily departs Australia or holds a bridging visa. As a review applicant before the Tribunal is eligible for a Bridging E Visa which would remain in force for 35 days after the Tribunal makes its decision on the review application or the applicant departs Australia, whichever is the earlier, the Tribunal is not satisfied the applicant would immediately become unlawful or liable to detention or removal upon cancellation, or be caused any hardship as might otherwise result.

   36. The Tribunal accepts the applicant would, if his visa were cancelled, be subject to s.48 of the Act, which significantly limits the classes of visa for which he may apply onshore. The Tribunal is satisfied cancellation of the applicant’s visa would prevent his re-entering Australia for up to 3 years as he may not meet the public interest criterion 4013.

   37.      The Tribunal considers any hardship as may be caused by these intended consequences of cancellation weighs in favour of not cancelling the visa

   Circumstances in which ground for cancellation arose.  If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence.  The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

   38.      The applicant’s evidence at hearing was that the circumstances in which the ground for cancellation arose were the significant suffering he enjoyed following the death of his ground parent. Subsequent to the hearing, the applicant was able to provide to the Tribunal further evidence in the form of statutory declarations and affidavits from family members and close friends setting out details of the applicant’s suffering and the effect on the applicant of his grandparent’s death, leading to the applicant’s enrolment being cancelled by his education provider. Nothing in the evidence before the Tribunal contradicts this evidence and accordingly the Tribunal accepts the circumstances in which the ground for cancellation arose were the depression the applicant suffered following the death of his grandparent.

   39.      The Tribunal considers the applicant’s falling ill and suffering the symptoms and effects of a depressive illness were not matters within the applicant’s control.

   40.      Accordingly, the Tribunal is satisfied the ground for cancellation arose in circumstances beyond the applicant’s control and, in the absence of the PAM3 guidelines indicating the visa should not as a general rule be cancelled (the general rule), weighs this consideration in favour of not cancelling the visa..

   Past and present behaviour of the visa holder towards the Department

   41.      There is nothing in the evidence before the Tribunal to suggest the applicant’s past or present behaviour towards the Department was adverse.  The Tribunal weighs this factor neither in favour of nor against cancelling the visa.

   Whether there would be consequential cancellations under s.140

   42.      On the evidence before the Tribunal, there are no persons in Australia whose visas would, or may, be cancelled under s140.  The Tribunal weighs this factor neither in favour of nor against cancelling the visa.

   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

   43. The Tribunal is satisfied cancellation of the applicant’s visa would, in addition to preventing his re-entering Australia for up to 3 years as he may not meet the public interest criterion 4013, limit his ability to remain in Australia but would not, whilst his Bridging Visa E remains in-force, result in his immediately becoming unlawful and liable to detention under s.189 of the Migration Act or removal under s.198 of the Migration Act.

   44. The Tribunal accepts the applicant would, if his visa were cancelled, be subject to s.48 of the Migration Act, which significantly limits the classes of visa for which he may apply onshore.

   45.      The Tribunal gives this consideration weight in favour of not cancelling the visa. 

   Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

   46.      Non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there will be a risk of harm.  Australia is a signatory to a number of international instruments, which give rise to non-refoulement obligations.  Australia is a signatory to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR).

   47.      Non-refoulement obligations' is not confined to the protection obligations to which s.36(2) of the Act refers: see Ibrahim v MHA [2019] FCAFC 89 at [103]. It is defined in the Act to include non-refoulement obligations that may arise because Australia is a party to one of the instruments mentioned above, or any obligations accorded by customary international law that are of a similar kind.

   48.      On the applicant’s evidence at hearing, his only reason to remain in Australia is to complete his studies.  He will return to his home country after completing his studies. The applicant’s evidence as to problems he would be caused if he returned before completing his Masters did not extend beyond those difficulties as would ordinarily and reasonably be foreseen as likely to afflict any unqualified person competing in a candidate pool of degree qualified persons on an open labour market.  Those matters would not attract non-refoulement obligations.

   49.      The Tribunal finds, in the circumstances of this case, cancellation would not lead to removal in breach of non-refoulement obligations.  As the Full Federal Court stated in COT15 v MIBP (No 1) (2015) 236 FCR 148, cancellation of a visa is legally distinct from removal.

   50.      There is no evidence before the Tribunal that cancellation of the applicant's visa would result in Australia breaching any obligations regarding the best interests of children.

   51.      The Tribunal considers these factors weigh neither in favour of nor against cancellation.

   If the applicant’s visa is a permanent visa, whether the former visa holder has strong family, business or other ties in Australia;

   52.      The applicant’s visa is a not a permanent visa.

   Any other relevant matters.

   53.      The evidence before the Tribunal does not disclose any other relevant matters.

   Conclusion

   54.      The PAM3 guidelines indicate that as a general rule, a visa should not be cancelled where, as the Tribunal has found occurred in this case, the circumstances in which the ground for cancellation arose were beyond the visa holder’s control.  Nothing in the evidence before the Tribunal suggests that general rule should not be followed in the circumstances of this case.

   55.      The Tribunal accordingly applies the general rule to its determination in this case and concludes the visa should not be cancelled.

   DECISION

   56.      The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

   Lynda Young
   Member

   
   

   ATTACHMENT

   Migration Regulations 1994

   …

   Schedule 8

   8202(1)  The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).

   (2)A holder meets the requirements of this subclause if:

   (a)the holder is enrolled in a registered course; or

   (b)in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student — the holder is enrolled in a full time course of study or training.

   (3)A holder meets the requirements of this subclause if neither of the following applies:

   (a)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:

   (i)section 19 of the Education Services for Overseas Students Act 2000; and

   (ii)standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;

   (b)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:

   (i)section 19 of the Education Services for Overseas Students Act 2000; and

   (ii)standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007

   (4)In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa — the holder is enrolled in a full-time course of study or training.