Chhinal (Migration)

[2017] AATA 2258

Chhinal (Migration) [2017] AATA 2258 (9 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Malina Chhinal
Mr Ashim Giri

CASE NUMBER:  1702362

DIBP REFERENCE(S):  BCC2017/220772

MEMBER:Tigiilagi Eteuati

DATE:9 November 2017

PLACE OF DECISION:  Brisbane

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

The Tribunal has no jurisdiction with respect to the applicant’s husband.

Statement made on 09 November 2017 at 4:49pm

CATCHWORDS

Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Enrolment in a registered course – Failed subjects – Applicant repeated semesters – Failure to pay tuition fees

LEGISLATION

Migration Act 1958, ss 116, 140, 348

Migration Regulations 1994, Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 9 February 2017 made by a delegate of the Minister for Immigration to cancel the first named 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 had not complied with the condition of her visa to be enrolled in a registered course. 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. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The other visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to applicant’s husband.

4. The applicant appeared before the Tribunal on 9 November 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s husband.

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.

   Did the applicant comply with Condition 8202?

7. 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).

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

9. The Minister’s delegate found that the applicant had not been enrolled in a registered course from 11 June 2016 to 8 February 2017 when she enrolled in a Tertiary Preparation Course and a Bachelor of Nursing with the Australian Catholic University (ACU) after she had received the Notice of Intention to Consider Cancellation (NOICC). This was conceded by the applicant and accords with records held by the Department.

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

    Consideration of the discretion to cancel the visa

11. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

12. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3).

13. The applicant said that when she arrived in Australia in December 2013 she was enrolled in an English language course to be followed by a Diploma of Nursing and then a Bachelor of Nursing. She said that she completed the English language course and commenced the Diploma course in mid-2014. She said that she had to complete three half-year semesters to complete the Diploma course.

14. The applicant said that she successfully completed the first semester of her course by the end of 2014. She said that she failed her second semester in the first half of 2015 and that she therefore had to re-take the second semester in the second half of 2015. She said that her family in Nepal, who were paying for her tuition fees were unable to pay her fees in the second half of 2015 and her COE was cancelled as a result. She said that she was able to pay the fees at a later date and was able to successfully complete her second semester in the second half of 2015.

15. The applicant said that she began her final semester in the first half of 2016. She said that her parents were again unable to pay her tuition fees and her enrolment was cancelled on 4 April 2016. Her enrolment in the Bachelor degree was consequentially cancelled on the same day and she was in breach of condition 8516 from that date. She was able to pay her fees and was issued a new COE on 19 April 2016.

16. The applicant explained that she was unable to successfully complete the semester by its end date of 10 June 2016 as she had failed the practical placement component of her course. She said that she had also failed three subjects. The applicant said that she applied for enrolment again but that the education provider refused to enrol her on the basis that she had made unsatisfactory course progress. The applicant said that she sent a letter of appeal to the provider in September 2016 but her attempts to re-enrol were unsuccessful. In October 2016 she wrote to the education provider asking for a release from her studies so that she could study elsewhere. The education provider replied that she was not enrolled in any course and did not require a release.

17. The applicant said that she was aware that it was a condition of her visa that she maintain enrolment in a registered course. She gave various reasons why she did not enrol in a registered course from the expiry of her last enrolment on 10 June 2016 until she enrolled in a Tertiary Preparation Course and a Bachelor of Nursing with ACU on 8 February 2017 after she had received the NOICC from the Department on 23 January 2017. She said that she could not enrol in a nursing degree because she was required to attain an overall score of 7 in an IELTS test to enrol in a nursing degree. She said that she approached a migration agent and he encouraged her to take an IELTS exam. When it was put to the applicant that she still did not have the required IELTS score to enrol in a nursing degree she said that it was not necessary for her to score a 7 in the IELTS because she would be eligible to be enrolled in the degree course without the IELTS score of 7 once she completed the Tertiary Preparation course. This appears at odds with her submission that she did not seek a degree COE because she required an IELTS score of 7.

18. The applicant then said that she could not obtain a COE in a registered course because there were no courses beginning in late 2016. The applicant claimed that it was a coincidence that she enrolled in the Tertiary Preparation course and the Bachelor of Nursing degree after she had received the NOICC. The Tribunal pointed out that the preparation course began in May 2017 but she was able to enrol in the course in February 2017 and she was able to enrol in the Bachelor degree in February 2017 despite the course not beginning until February 2018 and suggested that there was no reason why she could not have enrolled in a Bachelor course as soon as her last enrolment ceased in June 2016.

19. The applicant and her husband gave evidence that they would face hardship if their visas were cancelled. They said that the applicant would be faced with a three year bar from applying for another visa. They said that although the applicant already held a Diploma of Nursing from Nepal and that she would be able to practice nursing in Nepal if they returned, she would be able to get better nursing jobs, including supervision jobs, if she completed a degree in nursing in Australia. The applicant also said that her parents had spent a great deal of money on her tuition and she did not wish to return to Nepal empty handed.

20. The Tribunal raised with the applicant its concern that she had breached condition 8202 when, in June 2016, she ceased to be enrolled in a registered course and that she had breached condition 8516 when she ceased to be enrolled in a degree course in April 2016.

21. The Tribunal raised its concern that, because the applicant had breached these conditions and failed to be enrolled in a registered course between June 2016 and February 2017, and failed to be enrolled in a degree course from April 2016 to February 2017, she may not have the will or desire to successfully undertake a higher education course in Australia. The applicant insisted that she was a genuine student, that she had not changed areas of study and had always tried her hardest to study.

22. The Tribunal raised its concern that because the applicant had failed her second and third semesters of her Diploma of Nursing course, she may not have the ability to successfully undertake a degree course in Australia. The applicant said that she had passed some subjects in her Diploma course and that she was doing well in the Tertiary Preparation course. She said that she was confident that she would be successful in completing her degree course if given the opportunity to do so.

23. The Tribunal raised its concern that, because the applicant had her enrolment cancelled on two occasions for failing to pay her tuition fees, she may not be able to pay her fees in the future which would prevent her from successfully undertaking a degree course. The Tribunal pointed out that the proposed bachelor degree nominated by the applicant had tuition fees of almost $80,000. The applicant said that her father-in-law would assist with the tuition fees. The applicant’s husband said that he had discontinued his studies because his father did not have sufficient money to pay for both his and the applicant’s fees but that his father would assist with his wife’s fees.

24. The Tribunal has decided that the delegate’s decision to cancel the applicant’s visa should be affirmed. The applicant has breached conditions 8202 and 8516 and this weighs in favour of cancellation.

25. The Tribunal finds that the applicant is unlikely to have the ability to successfully undertake a nursing degree in Australia. She was unable to pass the second and third semesters of her nursing diploma, although she says that she passed her second semester on her second attempt. The education institution refused to enrol the applicant after she failed her third semester as she had unsatisfactory course progress. While the Tribunal accepts that the applicant passed parts of her diploma course and she says she is doing well in the preparation course, these courses are not a degree course. Her failure to even pass a diploma course during the currency of her visa suggests that she does not have the ability to successfully undertake a degree course.

26. Similarly, given that the applicant had her enrolment in her Diploma course cancelled on two occasions for failure to pay her fees for a Diploma course, the Tribunal considers that there is a real chance that she will not be able to pay the substantially higher fees for a degree course. While the applicant says that her father-in-law will assist with the payment of her fees, she was married to her husband before the two occasions when she failed to pay her fees and her father-in-law did not assist with her fees on those occasions.

27. The Tribunal is willing to accept that the applicant and her family members may experience disappointment that the applicant’s visa was cancelled before she was able to complete a degree course in Australia. The Tribunal is willing to accept that both the applicant and her husband will suffer hardship as they will return to Nepal without the applicant having completed a degree. The Tribunal accepts that the applicant may have been able to secure better employment opportunities in nursing if she held a nursing degree. However, she has worked as a nurse in Nepal in the past and she could enrol in a nursing degree course in Nepal if she wished. She will also be eligible to apply for an Australian visa once the three year bar has passed. 

28. In any event, the Tribunal finds that the applicant’s current lack of ability to successfully undertake a higher education course in Australia outweighs any hardship that she, her husband or her family members may face because of the cancellation of the applicant’s visa.

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

    DECISION

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

    Tigiilagi Eteuati
    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.