Adhikari (Migration)

[2024] AATA 2911

Adhikari (Migration) [2024] AATA 2911 (22 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Pukar Adhikari

REPRESENTATIVE:  Mr Majeesh Variyaniyil Gopi (MARN: 1808791)

CASE NUMBER:  2307671

HOME AFFAIRS REFERENCE(S):          BCC2022/3904615

MEMBER:David McCulloch

DATE:22 July 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 22 July 2024 at 9:26am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – no extenuating circumstances – family issues – impact of COVID-19 – significant period of non-enrolment – lack of academic progress – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116

Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 26 May 2023 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a citizen of Nepal born on 1 December 2000. The visa that has been cancelled was granted on 24 November 2021 for stay period until 2 June 2023.

3. The applicant was issued with a Notice of Intention to Consider Cancellation of the visa (NOICC) on 24 January 2023. The applicant responded to the notice.

4. The delegate cancelled the visa on the basis that the applicant was not enrolled in a registered course and thus in breach of condition 8202. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. The applicant was invited to a hearing of the Tribunal on 15 August 2024.  The applicant responded to the invitation declining to attend the hearing and requested a decision on the material before the Tribunal.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 (Cth) (the Regulations). If the applicant has breached that condition, under s 116(1) of the Act, the visa may be cancelled.

   Did the applicant comply with Condition 8202?

8. 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 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).

9. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a full time registered course.

10. The NOICC indicates that the applicant was not enrolled in a registered course from 16 December 2021 until 26 October 2022. Government records indicate that the applicant was not enrolled in a registered course when his Advanced Diploma of Leadership and management was cancelled on 16 December 2021 for non-commencement of studies.

11. In response to the NOICC in addition to other documents the applicant provided an explanatory statement explaining the reasons for the non-enrolment. The explanations proceed on the basis that the applicant accepts the period of non-enrolment.

12. On the evidence before the Tribunal, the applicant was not enrolled in a full time registered course. Accordingly, the applicant has not complied with condition 8202(2)(a).

    Consideration of the discretion to cancel the visa

13. 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. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedural Instruction ‘General visa cancellation powers’.

14. These matters include: the purpose of the visa holder's travel to and stay in Australia; compelling reasons to remain in Australia; the extent of compliance with visa conditions; the degree of hardship that may be caused to the visa holder and any family members; the circumstances in which the ground for cancellation arose - whether there are extenuating circumstances beyond the visa holder’s control; the visa holder’s past and present behaviour towards the Department; whether there are any persons in Australia whose visas would or may be cancelled under s.140 (i.e. consequential cancellation); whether there are mandatory legal consequences to the decision (whether indefinite detention is a possible consequence in light of any non-refoulement obligations; provisions in the Act which prevent the person making a valid application without the intervention of the Minister; whether the person would become an unlawful non-citizen and liable to be detained upon cancellation); whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation; the impact on children of the cancellation; whether the cancellation would lead to removal in breach of Australia’s non-refoulement obligations; and any other relevant matters.

15. In response to the NOICC the following documents were provided as summarised by the delegate:

    ·Reply to NOICC, not dated.

    ·GTE Response, not dated.

    ·Form 956, dated 02 February 2023.

    ·CoE Certificate IV in Kitchen Management, dated 26 October 2022.

    ·CoE Diploma of Hospitality Management, dated 26 October 2022.

    ·Medical documentation relating to father’s illness (21 documents in total), various dates.

    ·Prescription relating to mother’s illness, date unclear.

    ·Evidence of Nepalese Citizenship for father, dated 15 March 1988.

    ·Evidence of Nepalese Citizenship for mother, dated 07 May 1989.

    ·Birth Certificate for visa holder, date unclear.

16. The applicant provided to the Tribunal a document setting out the reasons for non-enrolment which are in similar terms to the information provided to the Department. The applicant also provided the same documents as provided to the Department to the Tribunal.

17. The Tribunal deals with discretionary issues in order of importance, as assessed by the Tribunal, commencing with the circumstances in which the ground of cancellation is made out and whether there are extenuating circumstances beyond the applicant’s control.

    The circumstances in which the ground of cancellation is made out – extenuating circumstances beyond the applicant’s control

18. The applicant indicates that the period of non-enrolment was because of family issues in Nepal. The applicant’s father is an alcoholic and was admitted to a rehabilitation centre on 9 December 2021. Despite treatment he started drinking again and was involved in a bike accident leaving him confined to a wheelchair. This caused the applicant’s mother to struggle with depression for which she sought therapy and takes medication. Additionally, the applicant’s sister was in the middle of her secondary education. All of these issues created stress for the applicant and he could not concentrate on his studies. Issues were compounded by COVID-19. The applicant stopped eating and sleeping properly.

19. Things have improved for the applicant and that he has enrolled himself in a Certificate IV in Kitchen Management and a Diploma of Hospitality Management at Griffin College and attends classes regularly. The health of the applicant’s father is improving. The health of the applicant’s mother is improving with medication. The applicant’s sister is in her final weeks of class 12 and after school will have a job. Impacts of COVID-19 have reduced. The applicant’s family is making a good income from agriculture, house rent and land lease. The applicant is looking forward to completing his course in returning to Nepal with the knowledge gained.

20. The applicant refers to difficulties in Nepal from COVID-19. The applicant refers to security problems in Nepal and the self-immolation of individuals in Nepal. The applicant’s parents have already been through a severe mental breakdown and this would be compounded if the applicant has to return to Nepal with his visa cancelled. The applicant has not told his parents about the NOICC. The applicant refers again to the past difficulty in being able to concentrate on his studies. He takes full responsibility for that although claims that the events were beyond his control. His committed to making up for missed classes and will do the best to catch up with the curriculum

21. In the absence of the applicant attending the hearing it has not been possible to question the applicant as claimed extenuating circumstances and determine the veracity and extent of the difficulties claimed.

22. If the applicant were suffering medical problems or there were compassionate issues, he could have remained enrolled in a registered course and sought deferral on medical, compassionate or extenuating circumstances.

23. There is no medical evidence presented by the applicant to his own treatment for psychological difficulties caused by the difficulties claimed.

24. While the Tribunal might accept a shorter period of non-enrolment for the reasons claimed the period of non-enrolment is approximately 10 months which is not insignificant.

25. Particularly given the ability of the applicant to have maintained enrolment but sought a deferral, the Tribunal is not satisfied that there are extenuating circumstances beyond the applicant’s control that explains or justifies onon-enrolment in a registered course for a period of approximately 10 months.

26. This is significantly adverse to the applicant in the exercise of the Tribunal’s discretion.

    Purpose of the applicant’s travel to and stay in Australia

27. It would seem implicit from the applicant being in Australia on a student visa that his purpose in coming to Australia was to study. Government records indicate the first course enrolled in by the applicant being an Advanced Diploma of Electronics and Communications Engineering that commenced on 14 January 2019.

28. The Tribunal had written to the applicant requesting all evidence of registered courses successfully completed in Australia and, for courses enrolled in but not completed, evidence of progression of those courses from relevant transcripts. The applicant did not provide this information before declining the hearing invitation and requesting that the Tribunal make a decision on the material before it.

29. The absence of the provision of any evidence the Tribunal takes it that the applicant has not completed any registered course in Australia or passed any unit in any course studied from the beginning of 2019 when he commenced studies until his visa was cancelled on 21 December 2021.

30. This significant lack of progress in terms of the reason for being in Australia is adverse to the applicant in the exercise of the Tribunal’s discretion.

    Hardship or compelling reasons to remain in Australia

31. The response to the NOICC refers to hardship to the applicant’s family if he has to return home without completing studies. The applicant indicates that the difficulties faced by his parents would be compounded if the applicant had to return prematurely.

32. The Tribunal accepts a degree of hardship to the applicant­ if his visa remains cancelled in terms of not being able to progress with study in Australia or stay in Australia. However, limitations on the ability of the applicant to study are undermined by no evidence that the applicant has actually completed any course or passed in the unit in any course from his time studying in Australia from the beginning of 2019.

33. The Tribunal accepts hardship if the visa remains cancelled in that it would create an exclusion for a significant period in the applicant being able to apply for many other visas to enable him to remain in Australia.

    Other factors

34. Although the applicant has referred to security problems in Nepal he has not made the claim that he faces persecution or significant harm in Nepal such that he cannot return home for that reason. The Tribunal is not satisfied but Australia’s non-refoulment obligations are relevant in this matter.

35. The applicant has not indicated that the interests of any children in Australia are affected.

    Weighing discretionary factors

36. It is significantly adverse to the applicant that the Tribunal does not consider there are extenuating circumstances beyond his control that explains his non-enrolment in a registered course for a period of approximately 10 months. This is compounded by no evidence of any course or any unit in any course passed by the applicant during his time in Australia.

37. While the Tribunal is prepared to accept some degree of hardship to the applicant and his family if the applicant has to return to Nepal sooner than he would have wished, the Tribunal is not satisfied that these hardships or any other factors in the applicant’s favour outweigh the issues adverse to him.

38. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

39. The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

    David McCulloch
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(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.