Dahal (Migration) - [2024] AATA 1085

Dahal (Migration) [2024] AATA 1085 (3 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Arpit Dahal
REPRESENTATIVE:  Ms Sophie Vaughan
CASE NUMBER:  2218969
HOME AFFAIRS REFERENCE(S):          BCC2022/3706239
MEMBER:Christine Kannis
DATE:3 May 2024
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 03 May 2024 at 7:01am
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered course – applicant ceased enrolment – impact of the COVID-19 pandemic – financial hardship – enrolment refusals – employment in aged care – multiple course cancellations – decision under review affirmed
LEGISLATION
Education Services for Overseas Students Act 2000, s 19
Migration Act 1958, ss 116, 140, 189, 198, 359
Migration Regulations 1994, Schedule 8, Condition 8202; r 1.03
CASES
Liu v MIMIA [2003] FCA 1170
Plaintiff M64/2015 v MIBP [2015] HCA 50
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 21 December 2022 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).
The delegate cancelled the visa on the basis that the applicant failed to comply with a condition of his visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.
The applicant appeared before the Tribunal on 23 April 2024 by MS Teams video to give evidence and present arguments.
The applicant was represented in relation to the review.
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
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?
On 25 August 2020, the applicant was granted a Subclass 500 (Student) visa with condition 8202 attached.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dahal (Migration)

Details

AGLC: Dahal (Migration) [2024] AATA 1085
Case: [2024] AATA 1085
Decision Date: 3 May 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Mr Dahal, a Nepalese citizen who held a Student (subclass 500) visa. The dispute arose from the Department of Home Affairs' intention to cancel Mr Dahal's visa due to his failure to maintain enrolment in a registered course, a breach of visa condition 8202(2)(a). The Tribunal was required to determine whether the ground for cancellation under s 116(1)(b) of the Migration Act 1958 existed and, if so, whether to exercise its discretion to cancel the visa.

The Tribunal found that the ground for cancellation under s 116(1)(b) was established because Mr Dahal had ceased enrolment in a registered course. In considering whether to exercise its discretion to cancel the visa, the Tribunal had regard to the circumstances presented by Mr Dahal, including the impact of the COVID-19 pandemic, financial hardship, marital difficulties, and his subsequent employment in the aged care sector. Mr Dahal explained that the shift to online learning during the pandemic was challenging, leading to difficulties in his studies and personal life. He also experienced significant financial hardship due to being stood down from employment and the inability to pay tuition fees, exacerbated by border closures preventing his departure and return. Despite these challenges, Mr Dahal had secured employment as an Enrolled Nurse and expressed a strong desire to resume his studies to become a Registered Nurse.

The Tribunal acknowledged the significant impact of visa cancellation but, on balance, concluded that the visa should be cancelled. While recognising Mr Dahal's efforts to rectify his circumstances and his contributions to the aged care sector, the Tribunal ultimately affirmed the decision to cancel his visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Tribunal recognises that the cancellation of the visa is a significant matter. However, on balance, and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.DECISION The Tribunal affirms the decision to cancel the applicant’s Class TU visa.Christine KannisMemberATTACHMENTMigration Regulations 1994…Schedule 88202(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.

Ratio Decidendi

Legal Principle Established

For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(b) exists. As that 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.Consideration of the discretion to cancel the visa 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 his representative, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, as set out below. On 22 November 2022, the Department of Home Affairs issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because he had ceased to be enrolled in a registered course from 1 April 2021 and had therefore failed to comply with condition 8202(2)(a) of his visa. Response to NOICC On 6 December 2022, the applicant responded to the NOICC in a submission from his representative in which the following information was provided:·The applicant is 23 and is a Nepalese citizen. ·The applicant was granted a Student (subclass 500) visa on 13 March 2018 to undertake study in a Diploma of Nursing and an Advanced Diploma of Nursing. ·The applicant arrived in Australia in April 2018 to commence his studies. His wife was granted a dependant visa on 1 April 2019 and soon after entered Australia. ·On 27 November 2018, the applicant commenced working on a casual basis at the Rainbow Hotel in Melbourne. ·On 9 January 2020, the applicant was awarded a Diploma of Nursing. He intended studying an Advanced Diploma of Nursing however decided to switch to a Diploma of Community Services. ·In or around February 2020, the applicant relocated to South Australia and commenced employment with TGI Friday's as a kitchenhand.·On 27 February 2020, the applicant began studying a Diploma of Community Services at Southern Cross Education Institute in South Australia.·On 18 March 2020, the Prime Minister announced a human biosecurity emergency due to COVID-19. Around this time, Southern Cross Education Institute ceased in person classes and moved to study online. Regarding online classes, the applicant said:This was a massive change in study format. I found this hard to cope with and was struggling with online classes.This frustration poured into my daily life making me lose focus, ultimately, affecting my mood and relationships with people around me.During this time, my relationship with Dhan was not good and we were struggling.·On 25 March 2020, the applicant was stood down from TGI Friday's due to the hospitality industry struggling during COVID-19 and he was told the restaurant would be closed from 25 March 2020 to 20 September 2020. ·In May 2020, the applicant applied for a second Student visa and was granted a Bridging visa A in association with this application. He intended undertaking a Bachelor in Health Science (Aesthetics). This change in course reflected his growing interest in preventative skin health and dermal therapies. His ex-wife was included in the application as a dependent applicant. The applicant had attempted to enrol into a Bachelor of Nursing however due to his low English test scores he chose to undertake a Bachelor of Health Science (Aesthetics) commencing on 1 June 2020. ·In late June 2020, the applicant returned to work at TGI Friday's however he was offered only limited hours.·The applicant successfully completed a semester of his Bachelor's degree, however, due to COVID-19, financial hardship and marital problems, he ceased his studies.·On 5 October 2020, the applicant contacted his university for financial assistance. On 9 October 2020 he received a tuition fee final reminder and a response advising they were unable to offer a payment extension or a payment plan as he missed the deadline for the request and unless he can show he was experiencing extenuating circumstances, he would need to pay the fees in full. ·On 15 October 2020, the applicant sought further assistance from the university’s Finance and was told there was nothing they could do as the census date to withdraw without having to pay a fee had passed and suggested he speak with an international advisor. On 20 October 2020 it was suggested he apply for the South Australian $500 Government Grant, which would not be sufficient to cover his tuition fees. The applicant asked his parents for financial assistance however their ability to assist him was limited. Even with their assistance, he could not gather sufficient funds to pay for his tuition and support himself for his stay in Australia. His enrolment was cancelled due to non-payment of fees on 1 April 2021.·He maintained his employment as a kitchenhand however the income was not sufficient to support himself as well as pay his tuition. ·On 13 October 2021, the applicant commenced employment as a Personal Care Assistant at Resthaven. South Australia's health system was experiencing under-resourcing, understaffing and were at breaking point from fatigue and burnout. Consequently, the applicant put his resources and time into his role at Resthaven. With the overwhelming need for nurses and pressure on nursing staff to work and fill in the gaps, the applicant could not stop working. He received a promotion with to Enrolled Nurse and commenced this role on 16 February 2022. He continues to be employed by Resthaven in this role.·On 22 November 2022, the applicant received a NOICC. On 30 November 2022, he applied to enrol in a Bachelor of Nursing with the University of South Australia and is waiting for his application to be processed.·The applicant will greatly benefit from studying in Australia and completing his intended course of study, which will further and advance his career in Nepal. ·The applicant accepts he has not complied with condition 8202 for 1 year and 8 months however this is outweighed by his steps to comply and he is in the process of enrolling in a Bachelor of Nursing. He intends to resume his studies and will be in compliance with condition 8202 which is the purpose of his Student visa and this should be given weight in favour of not cancelling his visa.·The applicant has spent 4 years in Australia and has created strong ties with his peers and the Australian community. In a letter of support his housemate, Ms Jo-Ann Taylor, stated she had known the applicant for 1 year 6 months and he is friendly and helpful and it would be a massive loss for her and their friends if his visa is cancelled.·If his visa is cancelled, the applicant will suffer financial and psychological hardship as he would not be able to pursue his studies and career goals. He will face disappointment from his family. His parents paid for the Diploma of Nursing. ·The applicant’s second Student visa was granted for the purpose of him undergoing education in the Higher Education sector, a Bachelor of Health Science (Aesthetics). However, when he commenced studying it was during the height the C0VID-19 pandemic and it was a time of great uncertainty. He was stood down from his employment as a kitchenhand on 25 March 2020 due to COVID-19 restrictions. He returned to this employment in late July 2020 but was only offered limited hours and as a result experienced financial hardship. He was struggling financially, mentally and emotionally. The applicant was also experiencing marital problems and was depressed, anxious, terrified and didn't know what to do. ·The applicant acknowledges Student visa holders must have sufficient funds to support their stay in Australia however he was struggling to cope and didn't know what to do. He acknowledges Student visa holders are expected to depart Australia and return once they are able to afford and continue their studies. However, the Australian Government had closed its borders to non-residents and non-citizens since 20 March 2020 and it was uncertain when he could re-enter Australia to continue his studies. Australia reopened its borders to fully vaccinated international students from 15 December 2021, meaning he could not have returned to Australia for over a year if he had departed in October 2020 when he was experiencing financial difficulty. ·At this time there was a need for health-care workers in South Australia. In an effort to rectify his financial hardship, the applicant sought employment as an Enrolled Nurse as he had completed a Diploma of Nursing. He also hoped to gain better employment and save enough money to return to his studies. ·The applicant intended returning to his studies once he saved enough money for his tuition, which he now has. He acknowledges some time has passed since he gained secure employment and he could have re-enrolled into a course sooner. However, as there was an overwhelming need for nurses in South Australia, he was focused on providing his skills to combat the skills shortage and lost focus on his studies. ·The applicant came to Australia to study when he was 19 years old. The COVID-19 pandemic, financial and marital problems resulted in him struggling to cope. He is now 23 years old, has secure employment and is in a better place mentally, emotionally and financially. He wants to pursue a nursing career and become a registered nurse. The decision maker should be cognisant of his level of immaturity, that there was no wilful malice or mischief behind his non-compliance and that he has successfully changed his circumstances and is now in a better position to return to his studies.·The applicant has been living in Australia for 4 years and has not been convicted of any offences nor does he have a criminal record to indicate he is a person of poor character. ·The applicant has been employed by Resthaven since October 2021 and has become a critical part of the team, having been promoted from Personal Care Assistant to Enrolled Nurse. Resthaven’s services include providing residential aged care homes, independent retirement living, in-home services and support for carers. The applicant has been a key part of Resthaven during COVID-19 and in their road to recovery after the pandemic. He has made valuable contributions to his community in his role in providing high quality services as an Enrolled Nurse. If his Student visa is cancelled Resthaven will lose a key team member. In a letter of support, Ms Melinda Meatheringham said he is a reliable and diligent employee and is well regarded by his peers, management and the residents at the facility and is an asset.·The applicant has successfully completed a Diploma of Nursing and is an Enrolled Nurse. He wishes to complete a Bachelor of Nursing to become a Registered Nurse (Aged Care) which will enable him to upskill and continue working in aged care and increase his employment prospects. Both occupations are listed on the National Skills Commissions Skills Priority list. The Commission reports that not only is there a shortage of Enrolled and Registered Nurses there is also a strong future demand and growing need for Enrolled and Registered Nurses in Australia's labour market. The applicant’s continued presence in Australia would result in his ability to contribute to the Australian community through his work and his ability to continue contributing in addressing the needs of the Australian labour market.