Bakshi (Migration)

[2020] AATA 1213

Bakshi (Migration) [2020] AATA 1213 (30 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Sherral Bakshi

CASE NUMBER:  1820524

HOME AFFAIRS REFERENCE(S):          BCC2018/1212292

MEMBER:Peter Newton

DATE:30 March 2020

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 30 March 2020 at 2:27pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 (Higher Education Sector) – not enrolled in registered course – mother’s illness, applicant’s visit to home country and depression – cancellation of enrolment – attempts to re-enrol and gain legal advice – discretion to cancel visa – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(b)

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.    This is an application for review of a decision dated 9 July 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (Act).

2.    The delegate cancelled the visa on the basis that the applicant had not been enrolled in a registered course of study since 25 September 2017. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3.    The applicant appeared before the Tribunal on 3 December 2019 to give evidence and present arguments.  On the day of the hearing, the applicant provided to the Tribunal documents including a chain of emails sent during the period from 17 October 2017 to 1 November 2017 between the applicant and Western Sydney University, a written statement by the applicant (Applicant’s Statement) and barely legible medical records.  Following the hearing, the applicant provided a record of the refund of fees paid by the applicant to Western Sydney University (refunded on 2 August 2018) and a Tax Invoice and Advice of Enrolment for Autumn 2017 from Western Sydney University issued 16 December 2019.

4.    I have considered all of the evidence and submissions from the applicant.  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

5.    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 (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?

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

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

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

1. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.  The applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course of study since 25 September 2017.

2. The applicant accepted that she was not enrolled in a registered course of study since 25 September 2017.  Accordingly, the applicant has not complied with condition 8202(2).

   Consideration of the discretion to cancel the visa

3. 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 considered all of the documents provided by the applicant to  the Department and the Tribunal, all of the evidence given at the hearing, the submissions, and had regard to the matters in the Department’s Procedural Instruction ‘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

4. The applicant was born in India.  The Decision records that the applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa for the purpose of study on 10 February 2016.  The applicant first arrived in Australia on 14 February 2016 for the purpose of studying a Bachelor of Nursing course at Western Sydney University.  I understand the applicant attended her studies until about 24 January 2017 when she departed for India to see her mother who was unwell.  The applicant returned to Australia on 24 February 2017.  She said she experienced depression due to her mother’s illness and missed a semester of study.  On 25 September 2017 her enrolment was cancelled.  The applicant says she attempted to re-enrol with Western Sydney University.  From on or about 30 October 2017 to 11 November 2017 she communicated with the University of Western Sydney about re-enrolling. The applicant provided a copy of an email train for this period which includes an  email from Western Sydney University to her dated 1 November 2017.  The email states:

5. The applicant says she approached the Redfern Legal Centre who were unable to assist in any meaningful way.

6. The applicant provided an email from Western Sydney University sent 21 June 2018 which records that the applicant enrolled in the following units of study for the Bachelor of Nursing course:

Period	Unit Code	Unit Title
2018 SPRING	401005	Human Relationships and Life Transitions
2018 SPRING	401007	Approaches to Professional Nursing Practice
2018 SPRING	401013	Promoting Mental Health and Wellbeing 1

1. On 7 June 2018 the applicant received a Notice of Intention to Consider Cancellation of her visa from the Department of Immigration (NOICC).  On 7, 21 and 22 July 2018 the applicant responded to the NOICC.

2. The applicant provided a notification from Western Sydney University recording that on 3 July 2018 the applicant paid $10,512 into her student account.  The applicant says that this payment was for the enrolment fees for the above three units of study.  On 9 July 2018 the applicant’s visa was cancelled.  On 2 August 2018 the applicant subsequently received from the Western Sydney University a refund of her fees.

3. As stated, the applicant accepts that she has not been enrolled in a registered course of study since 25 September 2017.  She says she wishes to return to studying the Bachelor of Nursing course.  She says she has not enrolled in that course of study because her bridging visa does not allow her to study. 

4. The applicant says that her dream is to become a nurse.  She says her family have supported her and if the decision of the Department of Immigration is affirmed and she returns to her home country she will have let down her family and wasted the last four years of her life.  She says she is ready to return to nursing studies.

5. The evidence establishes that the applicant cam to Australia for the purpose of studying.  The applicant ceased studying due to family issues and associated depression.  Upon receiving notification that her enrolment was cancelled, the applicant promptly contacted Western Sydney University about re-enrolling.  The University encouraged the applicant to obtain legal advice.  There is a delay of approximately seven months between the University encouraging the applicant to get legal advice (1 November 2017) and the applicant enrolling in three units of study in the Bachelor of Nursing course (21 June 2018).  Notwithstanding this delay, having regard to all of the evidence, I am satisfied that the applicant’s purpose of travel and stay in Australia is for the purpose of study.  I am satisfied that the applicant’s stated desire to return to studies to fulfil her dream to become a nurse and not to let down her family provide a compelling need for the applicant to remain in Australia.  I attach some weight to this in the applicant’s favour when considering whether the applicant’s visa should be cancelled.

   ·     The  extent of compliance with visa conditions

6. Condition 8202 is a mandatory condition applied to student visas which obliges visa holders to remain enrolled in a course of study and, depending on the course, either meet attendance requirements or meet academic progress requirements.

7. Student visas (subclass 570-574) are granted for the purpose of studying towards, and achieving, an educational qualification in Australia.  The student visa program provides an avenue to allow non-citizens and non-permanent residents to study in Australia.  In order to be granted a student visa, the visa holder’s primary intention must be to study, maintain enrolment, attendance and course progress, in a Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) registered course.

8. As stated, the applicant first arrived in Australia on 14 February 2016 for the purpose of studying a Bachelor of Nursing course at Western Sydney University.  I understand the applicant attended her studies until about 24 January 2017 when she departed for India to see her mother who was unwell.   The applicant accepts her enrolment was cancelled and she has not been enrolled in a registered course of study since 25 September 2017.  I have set out above the circumstances leading to the cancellation of her enrolment which caused her to breach condition 8202 imposed on her student visa.  I accept there are mitigating circumstances leading to the applicant not being enrolled in a course of study.  Nevertheless, I give some weight against the applicant for the breach of condition 8202(2) by not being enrolled in a registered course of study. 

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

9. The applicant says that her dream is to become a nurse.  She says her family have supported her financially and if the decision of the Department is affirmed and she returns to her home country she will have let down her family and wasted the last four years of her life.  She says she is ready to return to nursing studies. 

10. In my view, if the decision of the delegate is affirmed, the applicant is likely to suffer from financial, psychological or emotional hardship arising from the cancellation of her visa in the form of the loss of fees already paid for the studies undertaken and anxiety arising from the disappointment of not completing her studies in Australia to fulfil her dream of becoming a nurse and not fulfilling the expectations of her family.  I am of the view that a degree of hardship will be caused to the applicant if the Tribunal affirms the decision to cancel the applicant’s visa.  I give these matters some weight in the applicant’s favour.

    ·      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  

11. The Applicant’s Statement states:

    “Hi, my name is Sherral Shandilya Bakshi and my birth date is25/05/1997 I was commencing bachelors of nursing from university of western Sydney Parramatta due to my mother’s medical conditions I had to take a semester of from my uni and go back to India, after I came back my Coe was cancelled I provided my uni with proper supporting documents that I went back to India and my mother’s medical certificates as well, but than they told me to seek advice from the Redfern legal centre regarding the visa so I went almost every day there to seek advice from them but they were always confused in my case and never gave me a proper advice, and then when all this was happening I got a call from immigration that they can cancel my visa, so I contacted my uni they said that in can enrol in 3 subjects and pay my fee than I can get a new Coe, so I did so I got enrolled and paid my fee but in return my visa got cancel, this will be a big trauma for my family because my dad has put all his income in my studies $1 here is 50 times in India so if I don’t study here the loan taken by my dad from the bank for my studies will be hard and it my dream as well to become a nurse. Please I am asking just for one chance it’s a big mental pressure for me and my family as well… hope there will be a fair decision in my case.”

    24.       During the hearing, the applicant gave evidence consistent with the above statement.  I am satisfied that there are mitigating circumstances which contributed to the applicant ceasing her studies which contributed to the applicant’s visa being cancelled.  I am satisfied that these circumstances provide reason not to cancel the visa. I give this matter some weight in favour of the applicant.

    ·     Past and present behaviour of the visa holder towards the department

    25.      There is no information to indicate any specific matters of relevance regarding the applicant’s behaviour towards the Department of Immigration.  There is no evidence the applicant has been uncooperative with the Department of Immigration.  She promptly responded to the NOICC.  I give some weight in the applicant’s favour when considering this factor.

    ·     Whether there would be consequential cancellations under s.140

    26.      There are no dependant visa holders.  Accordingly this factor is not relevant to the Tribunal’s consideration of whether the visa should be cancelled.

    ·      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

    27. If the Tribunal affirms the decision to cancel the applicant’s visa, the applicant will be an unlawful non-citizen and may be liable for detention under section 189 and removal under section 198 of the Act if she does not voluntarily depart from Australia. Additionally, the applicant will be subject to section 48 of the Act which means that she will have limited options to apply for further visas in Australia. She will also be subject to Public Interest Criterion 4013, which may prevent her from being granted particular temporary visas for a specific period. These are the intended legal consequences arising from the cancellation of a visa and accordingly, on the evaluative exercise I am required to undertake, I assess these matters as neutral.

    ·     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

    28.      The circumstances of this case are not such that would engage Australia’s International obligations and the cancellation if the visa would not lead to a breach of Australia’s international obligations.  I therefore place no weight on this matter.

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

    29.      This factor is not relevant to the Tribunal’s consideration of whether the visa should be cancelled.

    ·     Any other relevant matters.

    30.       I am not aware of any other relevant matters in relation to the Tribunal’s consideration of whether the visa should be cancelled.  

    Conclusion

    31.      Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

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

    Peter Newton
    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.