Bhat (Migration)

[2019] AATA 6311

Bhat (Migration) [2019] AATA 6311 (17 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Prajeena Bhat

CASE NUMBER:  1716920

HOME AFFAIRS REFERENCE(S):          BCC2017/2097430

MEMBER:Frank Russo

DATE:17 November 2019

PLACE OF DECISION:  Sydney

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

Statement made on 17 November 2019 at 8:52pm

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector visa – applicant did not comply with condition 8202 – had not been enrolled in a registered course of study – period of almost three years of non-enrolment – financial incentives for remaining in Australia – significant personal ties in Australia – no actions being taken to remedy visa breach – no compelling need to remain in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994 (Cth), Schedule 8

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 28 July 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 delegate cancelled the visa on the basis that the applicant was not enrolled in a registered course of study from 25 October 2016 until the date of the delegate’s decision on 28 July 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 is a 25-year-old Nepalese national.

4. The applicant appeared before the Tribunal on to give evidence and present arguments.

5. 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

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

7. In addition to her application form, the applicant provided the Tribunal with the following additional documents:

   a.A copy of the delegate’s decision;

   b.Statement by the applicant, dated 21 August 2019;

   c.International Student Letter of Offer and Acceptance, issued by Linx Institute to the applicant on 21 August 2019;

   d.Tax invoices for the applicant’s consultations with Dr John Lee, dated 18 March 2017 and 25 March 2017;

   e.Tax invoice for consultation with Dr Margaret Hislop by Mrs Shobha Kumari Podel, dated 27 June 2018, as well as a separate tax invoice for a consultations with Dr Margaret Hislop by the applicant on 12 January 2018, 21 April 2018 and 27 June 2018;

   f.Pharmacy receipts for Maxolon tablets, issued by Pike’s Day and Night Pharmacy on 18 March 2017, and for Stemetil, issued on 25 March 2017;

   g.A pathology Request Assignment form;

   h.Letter from Dr Philip Goldstone of Marie Stopes Australia, dated 2 February 2018, regarding a medical procedure undergone by the applicant, as well as a medical certificate provided by Dr Goldstone on 2 February 2018, certifying the applicant as unfit for work/school from 2 February 2018 to 5 February 2018, and an six invoices for services, all dated 2 February 2018;

   i.Published information sheets from Marie Stopes Australia on ‘Contraceptive implant’ and ‘The contraceptive pill’;

   j.Surgical termination of pregnancy – Information sheet;

   k.Discharge Form and Out-patient Ticket, issued by Miteri Hospital, Bhaktapur;

   l.Marriage certificate of the applicant to her husband Sandeep Poudel on 4 August 2018, issued by NSW Registry of Births Deaths and Marriages on 6 August 2018;

   m.Letter of Sandeep Poudel, dated 19 December 2016, headed ‘Instruction to Payroll Officer’; and

   n.Loan arrangement letter, issued by Nepal SBI Bank Ltd to the applicant on 22 June 2015;

8. The Tribunal has read and had regard to these documents in making its decision. The Tribunal also notes and has regard to the documents contained within the Tribunal file and on the Department’s file.

9. The applicant indicated on her Response to Hearing Invitation that she requested that the Tribunal take oral evidence from two witnesses, Ms Rosi Poudel Chettri and Ms Pounam Neupane, both of whom are sisters of the applicant, and both of whom would give evidence by telephone. The applicant provided mobile telephone numbers for each of these witnesses in the Response to Hearing Invitation and confirmed the telephone numbers on the day of the hearing.

10. Following the applicant’s evidence given at the hearing, the Tribunal briefly adjourned the hearing to allow the witnesses to be contacted on the telephone numbers provided. Neither of the witnesses responded to the Tribunal’s telephone calls. The Tribunal resumed the hearing and noted on the recording that the Tribunal had attempted to contact each of the witnesses by telephone and neither witnesses responded to the calls. The Tribunal indicated to the applicant that it could adjourn the hearing to another day, to allow the applicant to confirm the attendance of the witnesses, or the applicant could provide written statements from each of the witnesses. The applicant stated that she preferred to provide the Tribunal with written statements from each of the witnesses. The Tribunal granted the applicant until 6 September 2019 to provide written statements from the witnesses, as well as any other further documents which she wished to provide the Tribunal.

11. On 6 September 2019, the applicant provided the Tribunal with statements by Ms Rosi Poudel Chettri and Ms Poonam Neupane, both unsigned and dated 6 September 2019. The applicant also provided a Confirmation of Enrolment (CoE) for the Diploma of Early Childhood Education and Care at Linx Institute, created on 26 August 2019. The Tribunal has also read and had regard to these documents in making its decision.

    Did the applicant comply with Condition 8202?

12. 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).

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

14. The applicant gave evidence that she arrived in Australia on 24 July 2015. She was enrolled to study a Bachelor of Accounting at Central Queensland University’s (CQU) Sydney campus. The applicant told the Tribunal that she commenced this course and studied for two semesters at CQU. She stated that in 2016 she enrolled in the Bachelor of Accounting at Elite International College (Elite). She stated that she studied at Elite for one semester only because she was disturbed because of her failure in her studies and because of family issues.

15. When questioned further about her studies, the applicant stated that she passed four subjects at CQU, but didn’t do as well as she had hoped, and therefore told her parents that she would enrol at Elite as it was a cheaper course. She stated that she could not concentrate on her studies because she was grieving the loss of her brother in the 2015 Nepal earthquake. She stated that she stopped studying at Elite after one-month of the start of her enrolment. She confirmed that she did not enrol in another course after this. She stated that she was supposed to enrol in an English course in July 2017, but couldn’t do so because of her health, and stated that was when she received the Notice of Intention to Consider Cancellation (NOICC) of her Student visa by the Department.

16. The applicant confirmed at the hearing that she was not enrolled in a registered course of study after 25 October 2016, and that she accepts there are grounds for the cancellation of her visa.

17. The Tribunal notes that it has on file a copy of the applicant’s enrolment records from the Provider Registration International Student Management System (PRISMS) database, but did not provide the applicant with a copy at the hearing as the Tribunal considered the information contained in her PRISMS record is consistent with the account she gave of her enrolment history in her oral evidence, and the Tribunal does not rely on the information contained within this document.

18. On the evidence before the Tribunal, the applicant was not enrolled in a registered course from 25 October 2016 until the delegate’s decision on 28 July 2017. Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

19. 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 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

20. The applicant stated at the start of her evidence that the purpose of her travel and stay in Australia is to complete her studies so she can return to Nepal and support her family. She stated that she completed high school in Nepal in 2014, following which she commenced studying a Bachelor of Business at MEGA College in Nepal. She stated that she studied this course for one year, but did not sit the exams because her Student visa application was granted. The applicant confirmed that she does not possess any tertiary qualifications.

21. When asked why she had decided to enrol in a Bachelor of Accounting in Australia, the applicant stated that she had done an ‘intensive’ in a bank in Nepal after she completed high school. She explained that this was like an internship. She stated that she was planning at the time to work in a bank so she could support her family.

22. The applicant stated that she lost a brother in the Nepal earthquakes in 2015. When asked when he passed away, the applicant stated that it was in April or May 2015 and was before she arrived in Australia in July 2015.

23. The applicant stated that in her first semester at CQU she was enrolled in four subjects, of which she passed two and failed two because she failed some assignments. She stated that in her second semester at CQU she didn’t pass three subjects. She stated that just before the second semester started, she returned home to Nepal to receive dental treatment. She stated this was around February 2016. She stated that after she returned home she was a little distressed as her parents had not gotten over the grieving process in relation to her brother’s death. She stated that she was not doing well and that maybe this was the reason why she failed. The applicant stated that she was trying to focus on her studies, but couldn’t do so or get the desired results. She said this led to less attendance at college.

24. When asked further about her attendance at college, she stated that she had backed out from CQU, but that she had full attendance while she was enrolled there. She confirmed that Elite had cancelled her enrolment because she was not attending classes, and that this was one or two months after she had enrolled there. She stated that she couldn’t focus on her studies because she was still grieving about her brother and that every time she called her parents they stated the same things.

25. The applicant gave evidence that she married a Nepalese national in August 2018. They were married in Australia. The applicant provided a copy of their marriage certificate. The applicant confirmed that her husband is not a secondary applicant to her visa application. She stated that he held a Temporary Work (Skilled) visa (subclass 457), but something went wrong with his visa. She stated that he was supposed to renew his visa, but he has now had to apply for a Student visa. The applicant confirmed that she has two sisters who live in Australia.

26. When asked again what the purpose of her remaining in Australia is, the applicant stated that she has her husband here and family here. She stated that her husband requires her support. She stated that her husband’s brother is also in Australia, and is dependent on the applicant and her husband like a mother and father.

27. The applicant stated that if her visa is not cancelled she is planning to study a Diploma of Childcare. When asked if she has enrolled in this course, the applicant stated that she had received an offer letter. She stated that the college is going to provide her with a CoE before lunch on the day of the hearing. On 6 September the applicant provided the Tribunal with a CoE for the Diploma of Early Childhood Education and Care at Linx Institute, with a start date of 8 October 2019 and an end date of 10 October 2021. The CoE records that it was created on 26 August 2019.

28. The Tribunal asked the applicant why she is interested in a Diploma of Childcare. She stated that she has a personal interest in childcare. She stated that she took care of her brother’s child and she had lost miscarried her own children one two occasions.

29. When asked further about her current plans later in the hearing, the applicant stated that she wants to do Bachelor degree and then return to Nepal to open a Montessori academy or a school for children, with her husband’s support. She stated that her husband is currently enrolled in an Advanced Diploma of Business Management and then plans to study Cookery.

30. The Tribunal raised concern that, on the evidence she had given, the purpose for her wishing to remain in Australia may be to be with her husband as well as for other financial and personal reasons, rather than for the purpose of genuine study. The applicant responded by stating this was not the case, and that she would like to go on to complete a Bachelor degree.

31. The Tribunal questioned the applicant as to why she had not sought fresh enrolment in a course of study at an earlier stage. She stated that from March 2017 she experienced problems with a pregnancy and that in July 2017 she was sick as a result of a miscarriage. She stated that she went to the bathroom and wasn’t well and miscarried her child. She stated that she does not have any medical reports in relation to this incident as it occurred while she was at home. The applicant stated that she provided the Tribunal with documents from March 2017, which relate to the problems associated with her pregnancy. The applicant stated that she suffered vomiting and she was given prescriptions of Stemitil and Maxolon. She stated that after July 2017 she was sick and had best rest. She stated that this was when she received the NOICC from the Department.

32. The applicant told the Tribunal that she had told the Department in her response to the NOICC that the reason why she didn’t continue with her studies was because she wanted to study social work, and that she didn’t tell the Department about the medical issues which she was facing. The applicant told the Tribunal that she didn’t end up enrolling in social work as it’s not considered a valuable career in Nepal. She stated that she is still grieving the loss of her child, which may be the reason why she is now interested in Childcare. When asked why she didn’t tell the Department about the problems she was having with her pregnancy, she stated that she thought it was a personal matter and that she didn’t understand that without providing any evidence her visa would be cancelled.

33. The applicant stated that her husband wanted her to study Nursing, but in February 2018 she had a second miscarriage. She stated that she had to take rest for some time as she was not well. She stated that she had stomach pains and cramps. When asked whether she was working at the time, the applicant confirmed that she was working in a fruit shop. She stated that this involved lifting heavy boxes. The applicant stated that following this second miscarriage she rested for two to three months and then resumed her work at the fruit shop.

34. The applicant gave evidence that she worked as a room attendant in a hotel from 2016 until mid-2017. She commenced her work in the fruit shop in September 2017 and worked there till 2018. At the time of the hearing she was working as a supervisor in a different fruit shop.

35. The applicant told the Tribunal that she was meant to enrol in the Bachelor of Early Childcare in 2018, but she couldn’t because of her husband’s visa problems, and because they had one month to move houses. She stated that in the meantime her IELTS English test score expired and she needed an up-to-date test score in order to enrol in courses.

36. When asked whether there were any other reasons why she did not recommence studying in 2018, the applicant stated that she wanted to put things behind her. She stated that she needed time for herself, so she could mentally prepare herself and focus on her studies.

37. The Tribunal has also had regard to the applicant’s statement, dated 21 August 2019, in which she sets out her reasons for choosing to study in Australia over other countries and why she has chosen to study in Australia, rather than Nepal. In relation to her career plan, she states that she intends to open a Montessori or pre-school in Nepal with the help of her husband and family.

38. The Tribunal accepts that the initial purpose of the applicant’s travel and stay in Australia was for the purpose of obtaining a tertiary education, however the Tribunal places weight on the fact that the applicant has remained unenrolled from 25 October 2016 until her recent enrolment in a Diploma course which was set to commence on 8 October 2019. This is a period of almost three years. While the applicant provided evidence of both the continued grief which she experienced over the death of her brother in 2015 and the medical and other issues which she experienced in 2017 and 2018, the Tribunal does not consider that these are sufficient explanations for why the applicant would remain unenrolled for a period of close to three years if her purpose for remaining in Australia is that of a genuine student.

39. Based on the applicant’s evidence, the Tribunal considers that the applicant’s purpose for remaining in Australia is principally for reasons other than study. The Tribunal places weight on the applicant’s evidence regarding her need to remain in Australia to be with her husband, who is not a dependant to her visa application, as well as to provide support to her brother-in-law who resides in Australia, and to financially assist her family in Nepal. The Tribunal also notes the applicant has two sisters who reside in Australia. The applicant has significant personal ties in Australia as well as financial incentives for remaining in Australia, which based on her evidence, the Tribunal considers to be the principal motivation for her continued stay in Australia.

40. The Tribunal has however considered the applicant’s claims about her desire to obtain an education in Australia, and of her future plans to open a Montessori school or other childcare centre on return to Nepal. The Tribunal takes this into account and gives it some weight in assessing this matter.

41. The Tribunal has also considered the applicant’s recent enrolment in the Diploma of Early Childhood Education and Care, but gives this little weight. The Tribunal considers it more likely that the enrolment was obtained for the purpose of the hearing, given the applicant was unable to provide any reasons why she had not obtained this enrolment earlier in 2019. Although the Tribunal accepts that the applicant experienced several difficulties which may have impacted on her ability to focus on her studies and that led to delays in re-enrolling, the Tribunal does not consider that her lack of enrolment in a course of study for a period of close to three years is consistent with someone whose primary purpose for remaining in Australia is to study. Accordingly, the Tribunal gives this only little weight against cancelling the visa.

    The extent of compliance with visa conditions

1. As noted above, the applicant did not comply with condition 8202(2) following the cancellation of her enrolment on 25 October 2016 as she remained unenrolled until the date of the delegate’s decision on 28 July 2017. The applicant gave evidence that she has always complied with the work limitations of her visas and has not worked more than 20 hours per week at any of her places of work. The Tribunal accepts this and accepts that other than the breach of compliance with the enrolment requirement, there is no evidence of the breach of her other visa requirements. The Tribunal gives this some weight against cancelling the visa.

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

2. When asked about the hardship which may be caused by the cancellation of her visa, the applicant stated that she has an income here in Australia. She stated that her husband is here in Australia. She stated that she and her husband depend on each other. She stated that it would be difficult for her to find a job in Nepal without a degree. She also stated that her husband’s younger brother relies on her and her husband like they are his parents, including financial reliance. She stated that she has been living with her husband since 2016 and it would be emotionally difficult for both of them if she had to leave. She stated that she and her husband have her husband’s family in Nepal to look after. She stated that he supports them financially as they live in a village area. She stated that the hardship would also extend to her family as she and her husband also pay for her brother’s school fees in Nepal.

3. The Tribunal accepts that the applicant would experience hardship as a result of the cancellation of the visa and gives this some weight against the cancellation of the visa.

   Circumstances in which the ground of cancellation arose. Are there any extenuating circumstances beyond the visa holder’s control that led to the grounds existing?

4. As noted above, the applicant stated that she lost a brother in the Nepalese earthquakes in 2015. She stated that he passed away in April or May 2015, before she arrived in Australia in July 2015. She stated that in her first semester at CQU she was enrolled in four subjects, of which she passed two and failed two because she failed some assignments, and that in her second semester she failed three subjects. She stated that around February 2016, just before the start of her second semester, she returned home to Nepal to receive dental treatment. She stated that she was distressed as her parents had not gotten over the loss of her brother. She stated that she was not doing well and that maybe this was the reason why she failed. The applicant stated that she tried to focus on her studies, but couldn’t do so or get the desired results, and this affected her attendance at college.

5. The applicant gave evidence that she then transferred to Elite, but Elite cancelled her enrolment within one or two months because she was not attending classes. She stated that she couldn’t focus on her studies because she was still grieving the loss of her brother.

6. The Tribunal asked the applicant whether there were any other reasons why her enrolment at Elite was cancelled, to which she responded that it was just due to her reduced attendance.

7. The Tribunal questioned the applicant as to whether she had spoken to anyone at Elite about the problems she was facing, and if not, why not. She stated that she didn’t because she is a reserved person and would talk to her family about her problems instead. The Tribunal questioned the applicant as to whether she considered deferring her studies, and if not, why not. The applicant stated that she never really knew about that.

8. The Tribunal has also considered the evidence the applicant gave of the medical difficulties which she experienced from March 2017, which is set out above. She gave evidence that from March 2017 she experienced problems with her pregnancy and that in July 2017 she was sick as a result of a miscarriage. She stated that she does not have any medical reports in relation to the July 2016 incident as it occurred while she was at home.

9. The Tribunal raised with the applicant whether there were any other circumstances relating to the breach which were beyond her control. The applicant stated that her mental health was beyond her control as she could not focus on things and could not think straight.

10. The Tribunal questioned the applicant as to whether she sought any medical or psychological assistance in relation to the grief which she experienced. She stated that she did not seek any in Australia. She stated that her uncle in Nepal works in a hospital, but did not provide any evidence of treatment received from him in a professional capacity in relation to her grief. She stated that she was very close to her first brother and treated him like he was her own child. She stated that her mind was torn, which is why she could not concentrate on her studies. She stated that she almost lost her father as well in the earthquakes.

11. The Tribunal also notes that the Discharge Form and Out-patient Ticket which the applicant provided from Miteri Hospital, Nepal, appear to relate to an admission for appendicitis when the applicant was 17 years old, and therefore the Tribunal does not find them relevant to the applicant’s claims as to the circumstances for the breach of her enrolment condition.

12. The Tribunal has also considered the statements which the applicant provided from her sisters, Ms Poonam Neupane and Ms Rosi Poudel Chettri. Both statements are dated 6 September 2019 and are unsigned. Although the statements appear to be in different fonts and different font sizes, they are almost identical in their wording. Each statement contains an identical first paragraph which vouches for the applicant’s morals and integrity and her devotion to friends and family. Each statement contains an almost identical second paragraph, with the exception of two additional sentences contained in the statement of Ms Chettri, one of which is however contained in the third paragraph of Ms Neupane’s statement. The statements contain identical final paragraphs. Each statement contains the same turns of phrase in describing the applicant and her circumstances. Given the overwhelming similarity in the wording of each statement and the fact that neither statement is signed, the Tribunal has doubts as to the independence of these statements or whether they include only things known to each witness, and the Tribunal therefore gives little weight to these statements.

13. The applicant has not provided any evidence that she sought medical or psychological assistance in relation to the symptoms of grief which she claims she experienced. While the Tribunal accepts that the applicant is likely to have experienced ongoing grief as a result of the loss of her brother, and has considerable sympathy for the applicant given these circumstances, it notes that the applicant made the decision to move to Australia for the purpose of study a few months following her brother’s death. The applicant would have been aware that one of the conditions of her Student visa was she had to maintain enrolment in a registered course. If the applicant was experiencing symptoms of grief, there were other options open to her, such as to delay her travel to Australia or to seek a deferral of her studies following her arrival. On the applicant’s evidence, she did not raise the difficulties she was facing with her course provider. As noted above, the responsibility for maintaining enrolment in a registered course rests with a visa holder, and the Tribunal does not accept the applicant’s claim that she was unaware of the option to apply for a deferral of her studies. The Tribunal finds that the circumstances which resulted in the cancellation of the applicant’s enrolment were not beyond her control.

14. The Tribunal has considered the evidence of medical consultations and medication prescribed in March 2017, as well as that relating to the applicant’s second miscarriage in February 2018. The Tribunal accepts that the applicant had difficulties with her pregnancy from March to July 2017, which are likely to have impacted on her ability to study or to obtain another enrolment during this period. The Tribunal gives weight to this as a reason why the applicant remained unenrolled during the period March to July 2017. The Tribunal does not however consider that these medical issues, which from the applicant’s evidence, arose from March 2017, give a full explanation for the applicant’s breach of the enrolment condition, given the cancellation of his enrolment by Elite on 25 October 2017 for non-attendance, and then applicant’s insufficient explanation as to why she had not taken steps to remedy this breach prior to March 2017.

15. Overall, the Tribunal considers the principal reason for the breach in the enrolment condition was the applicant’s non-attendance at Elite. The Tribunal therefore considers that the circumstances which resulted in the breach were not beyond the applicant’s control, given the above findings. However, given the medical issues which the applicant experienced from March to July 2017, the Tribunal gives this consideration a little weight against the cancellation of the visa.

    Past and present behaviour of the visa holder towards the Department

16. The applicant stated at the hearing that she was not aware of any issues regarding her behaviour towards the Department. The Department’s decision indicates that the applicant has been cooperative in providing information relating to her current contact details, and from the Tribunal’s perusal of the Department’s file the applicant appears to have been cooperative with the Department. The Tribunal gives this some weight against cancelling the visa.

    Whether there would be consequential cancellations under s.140

17. The applicant stated at hearing that there are no persons in Australia whose visas would, or may, be cancelled under s.140. The Tribunal questioned the applicant about her husband and whether his visa may be automatically cancelled as a result of the cancellation of her visa. The applicant confirmed that her husband has made his own application for a Student visa and is not a dependant to her visa application. On the evidence before it, the Tribunal weighs this factor neither in favour nor against cancelling the applicant’s 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

18. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. The applicant would need to seek advice regarding her immigration status. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that she could also be subject to a three-year exclusion period unless she meets the relevant Public Interest Criterion.

19. The Tribunal has considered the difficulties this may pose to the applicant given her stated reasons for wishing to study in Australia, including her desire to obtain a qualification and other personal reasons for wishing to remain in Australia. The applicant stated that one reason why she wants to complete her studies in Australia is because she wants to obtain a degree, as without this she will be jobless when she goes back to Nepal. She stated that she would like to obtain a degree in something practical. In addition, she stated that she and her husband help each other financially and are each other’s emotional support. She stated that if they are separated, their family will be broken apart and they will each be emotionally distraught.

20. The Tribunal has considered these arguments. The Tribunal gives some weight to the difficulties which would be faced by the applicant, given her husband is currently also in Australia, although the Tribunal notes that from the applicant’s evidence he is also a temporary visa holder. The Tribunal has considered the applicant’s evidence about the effect of the mandatory legal consequences on her ability to study in Australia in the future, but gives this little weight given the applicant’s enrolment history to date. The Tribunal notes that the applicant has not been enrolled in a course of study from 25 October 2016 until her recent enrolment in a Diploma course commencing in October 2019. The Tribunal also notes that the applicant was enrolled in MEGA college in Nepal prior to arriving in Australia, a college which has campuses in Australia. The Tribunal considers that the applicant is still relatively young and has options for study in her home country, and could also reapply to study in Australia following the three-year exclusion period. However, given the applicant’s other personal reasons for remaining in Australia, including the impacts it could have on her family arrangements, the Tribunal gives this some weight against 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

21. There is nothing to suggest, and the applicant does not claim, that Australia has obligations under relevant international agreements any international obligations, including non-refoulement and best interests of the children, would be breached as a result of the cancellation. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa

    Any other relevant matters

22. The Tribunal asked the applicant whether there are any other relevant matters which the Tribunal should take into account. She stated that her brother and brother-in-law are both financially dependent on her and her husband. She stated that her brother’s studies would be affected as she and her husband look after his school fees. The Tribunal has considered these claims in its consideration of the difficulty which the applicant may face if the visa is cancelled. The Tribunal does not need to consider them again. There are no other relevant matters which give weight against or in favour of cancelling the visa.

23. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled. In particular the Tribunal places weight on the purpose of the applicant’s travel and stay in Australia and whether she has a compelling need to remain in Australia. The applicant was not enrolled to study for a period of almost three years. Whilst she has advanced evidence of medical issues which impacted her ability to study for short periods within this three-year period, as well as other reasons for why she did not enrol in a course, such as her desire to enrol in Social Work, the Tribunal does not consider these to be a sufficient explanation for why the applicant remained unenrolled for a period of almost three years. The Tribunal considers that the applicant’s enrolment history indicates that her purpose for remaining in Australia is not primarily for the purpose of study, which is supported by the applicant’s own evidence as to personal reasons for wishing to remain in Australia, including the presence of her husband in Australia on a temporary visa and the financial and other support she and her husband provide to family members both in Australia and in Nepal. Overall the Tribunal gave little weight to the purpose for the applicant travel to and stay in Australia as a reason for not cancelling the visa. As noted above, the Tribunal has also given little weight to the circumstances for the breach as a reason for not cancelling the visa. Although the Tribunal accepts the applicant’s evidence of the medical difficulties which she faced from March to July 2017, the Tribunal considers that the main reason for the breach of the enrolment condition was the applicant’s non-attendance at Elite, which resulted in cancellation of her enrolment on 25 October 2016. Having considered all of the applicant’s evidence with respect to these circumstances, the Tribunal considers that the circumstances for the breach were not beyond the applicant’s control, and that she has provided insufficient reasons as to why she did not take steps to remedy the breach prior to the medical issues which arose in March 2017, given she was the holder of a Student visa, granted for the primary purpose of pursuing studies in Australia.

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

    DECISION

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

    Frank Russo
    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.