Dahal (Migration)

[2020] AATA 3518

Dahal (Migration) [2020] AATA 3518 (20 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sushan Dahal

CASE NUMBER:  1827720

HOME AFFAIRS REFERENCE(S):          BCC2018/1915985

MEMBER:David McCulloch

DATE:20 July 2020

PLACE OF DECISION:  Sydney

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

Statement made on 20 July 2020 at 2:39pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – circumstances giving rise to non-compliance – adjustment issues and cultural shock – mother’s injury – credibility concerns – unsatisfactory attendance – genuineness of desire to study – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 12 September 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 (the Act).

2. The applicant is a national of Nepal, born on 17 December 1995. The visa that has been cancelled was granted on 17 July 2015 for a stay period until 30 September 2018. That visa was subject to condition 8202.

3. On 21 August 2018 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate considered that the applicant did not comply with condition 8202 of his visa, as he ceased to be enrolled in a registered course from 6 November 2017. The applicant provided a written response to the NOICC.  On 12 September 2018 the delegate decided to cancel the visa held by the applicant on the basis that the applicant breached condition 8202 of his visa. The applicant seeks review of the delegate’s decision.

4. The delegate cancelled the visa on the basis that the applicant had breached condition 8202 in relation to the requirement to be enrolled in a registered course. The issue in the present case is whether the ground for cancellation is made out and, if so, whether the visa should be cancelled.

5. The Tribunal exercised its discretion to hold the hearing by telephone.  The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.

6. The applicant appeared before the Tribunal by telephone on 19 May 2020 to give evidence and present arguments. At the applicant’s request, the Tribunal took evidence from Ms Tika Maya Paudel, who had married the applicant on 10 May 2020.

7. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

8. 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

9. 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?

10. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:

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

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

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

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

12. The applicant provided a copy of the delegate’s decision to the Tribunal which indicates that he has not been enrolled in a registered course of study since 6 November 2017. The applicant acknowledged in the Tribunal hearing that he ceased to be enrolled in a registered course on this date.

13. There is nothing before the Tribunal to suggest that the applicant was a holder of a Subclass 560 or 571 (School Sector) visa as a secondary exchange student, thus the applicant’s obligation under condition 8202(2) is to be enrolled in a registered course.

14. 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

15. 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.

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

17. The applicant provided the following reasons to the Tribunal as to why the visa should not be cancelled (not corrected for spelling or grammar):

    I am submitting this statement in response to the Notification of Cancellation of Student Visa that I have received on 12 September 2018. I have received Notice of lntension to consider Cancellation of Student Visa (NOICC) on 21 August 2018 and I had response NOICC on 4 September 2018.

    Through this statement, I have presented my point of view and clarifications accordingly for reason behind having study gap from 6 November 2017 and strong reason for studying Bachelor of Information Technology in Australia. With the dream of studying abroad, I initially arrived Australia on July 2015 to study on Federation University. I enrolled in Bachelor of Information Technology on the same year. My parents were more than excited for my abroad study. My study on Federation university was going well. From the early days, I am dedicated and focused student, so I studied with all my effort. However, my beginning days in Federation University was difficult as Australia was new for me. Later, I had begun to adopt Australian culture but in the meanwhile on October 2017, I heard a news of my mother's accident, which lead me unconscious. I had to go through many ups and down in my life which halted my study. Through this letter, I am requesting the Immigration to give me one chance to continue my study and grant me student visa.

    With the positive hope, now I have applied for the Bachelor of Information Technology in Victoria University and requested for the Confirmation of Enrolment. Having said that I do hope that I can be of assistance in correcting my mistake and resolving this matter and will be given a second chance to carry on my study and have a successful career out of it in my country.

    Every international student like me are here to gain new skills and gather information relating to our course of study and for a successful career. I was never intended to create such a difficult and depressing situation in my student visa. All my dreams hope, and my hard work is about to complete as I will soon be graduating with Bachelor, if I am given one chance by the Australian Immigration. I have a strong willing to complete  the study and I will complete if given opportunity.

    Being the junior son of my parents, I am close to them. My parents, especially my mother is my best friend more than my guardian. Even I am physically far from her, I used to get in regular touch through social media. I would like to say that I had friendly relationship with my mother. She has fulfilled my every desire and I still remember my farewell day for Australia. Her eyes were full of tears as we were getting physically far from each other. Even after I arrived here, I continue used to chat and call her. Around on October, my heart was broken hearing the news of her accident. She fell down from our home stairs. Luckily, my dad was in my house and my brother was out of Nepal and my sister is already married. My mother was hospitalised in Grande Hospital (One of the big hospitals in my country) for 2 months. At that time, I was alone, and I had no one to share my problems. Hearing that made me so devastated I had no idea what to do. Because of this emotional issue, I started to feel depressed, lonely, hopeless and eventually, it took me to severe depression. It was more painful to cope with the difficulties faced by parents. My mental state deteriorated at this point as I struggled to make a correct decision, since I was not being able to get enrolled in any colleges which made me doubt about my future and furthermore, I had no one around to support me during this time. I was starting to feel depressed and nothing could help me at all. I struggled making friends and had minimal human contact around. This led me to have   a negative thought to my life and I stopped attending my classes. Once at a point, I had thought to return back to my family leaving my ongoing study, but it was useless to get back without completing my motive of coming Australia.

    I was unknown about depression at that time and I even did not inform my friends. But later as I had stopped attending lectures and I was contactless with my friends, so they visited my room and they knew about my situation. My friend suggested me to visit doctor. I am lucky enough to get friends who supported and suggested me to fight back and start from the beginning.

    Now my mom's heath is getting better, so my situation is pretty much improved than previous. With all these monotonous feelings and uneasiness, I wish to continue with my studies as I was keen to study and didn't want to waste any time of mine, my parent's money and their hope on me. I lost my confidence and hope with the cancelled COE.  At some point I felt my mental health was not good. I went through depression because of home sick and loneliness. I have attached Medical Certificate provided by the doctor in regard to my health situation.

    Even my medical condition was not good at that time, I decided to keep my study going and decided to work more on my study. I didn't have any courage to discuss this issue to family back home but luckily, I had some of friends over here who suggested me to begin my course. My parents spent a lot on me and had lots of expectation, hence, I chose not to tell them about my situation and tried to deal with it myself.

    Hence the stress about my mother's health started affecting my studies. I was not able to concentrate on studies. I was not in a situation to go back to visit her in Nepal as well. But I was trying my best to cope up with the study load.

    Hence circumstances beyond my control led me a lapse in concentration and poor academic progress. I strongly believe that the worst has passed, and I am focused on my career. I intend to complete the course I am currently enrolled in before returning back home.

    I strongly desire to complete my studies from Australia. The study system is improvised in comparing to Australian standard of education. Being principally educated only is not enough to grasp the maximum output but instead they need to be professionally educated and trained with the in-depth accounting knowledge which is not in practice in Nepalese universities. Also, Nepalese Universities are yet to get highly recognized on the global context so being graduate from here will limit my professional horizon and will be limited within my country only.

    I am aware that I haven't completed any course till date but I have always been a genuine student and always determined to study further and kept myself going further to achieve my dream career. I would like to let you know that whatever happened in past was beyond my control but now I aim to study properly.

    I only want to study further and complete my course and want to return upon completion of my course for further career and to be with my parents to support them. Moreover, I have a good socio-economic status like properties, socio relation and annual income which I further need to give continuation as they are becoming older day by day, I need to be part of my family and will definitely do my responsibilities after completion my studies. I will definitely accountable towards my country and family.

    I am positive of what the future holds and with my qualification what more can I achieve. Nepal has a highly growing IT market due to many people still connection to the internet. This means there is a potential and even more, an opportunity, to make the most out of IT and this field. The surge of local IT companies like Mercantile Communications, Verisk Information Technologies, Deerwalk, Sprout, etc has clearly shown that IT companies have lots of potential in Nepal. They have made a good lot of money and have shown path to several others to follow suit. I want to use my education in IT sector of Nepal and remain in part to these companies to be best in the Nepali IT world. There is no doubt that the IT industry is a booming  industry all over the world  in past few decades. There is a huge career opportunity and a very big demand of skilled

    IT engineers and programmers not only in IT industries, but also in banks, Government offices and almost everywhere. After my degree, I am very confident that my study will open doors of opportunities to compete at anywhere in the world. After my bachelor's degree, I would also like to get some management skills which I believe will be beneficial to flourish my career.

    I am desperate to be back with parents but would like to go home with a degree that I will achieve. I want my parents to be proud of me and my education degree. I wish to give them a very good life and I am committed to it which can be done when I can grab enough knowledge to build upon. I am confident that the Australian bachelor's degree will unlock my potential and will help me to provide an envious life to my family

18. The applicant provided several documents to the Department and to the Tribunal, in advance of the hearing. The applicant provided a psychologist’s report dated 7 September 2018 regarding the applicant.

19. The report states that the applicant came to Australia for study in July 2015. The applicant experienced adjustment issues and cultural shock, and experienced difficulty as it was his first time living apart from friends and family. The applicant was stressed, felt socially disconnected, and found it difficult to make friends.  The applicant did not achieve satisfactory results and switched courses in the hope that the new course would be less demanding.

20. The applicant’s mother, to whom he was close, had a fall in October 2017 and underwent surgery due to her critical condition, and was hospitalised for two months. The applicant’s siblings did not tell him until a few weeks after the incident, which angered him. The applicant was worried about his mother’s health and was overwhelmed with sadness and anxiety. The applicant could not afford to visit his mother in Nepal, and subsequently felt frustrated and guilty.

21. The applicant lacked motivation to attend to his studies following his mother’s accident. The applicant felt hopeless, experienced sleep disturbance, weight loss, and depressed moods. The applicant began relying on sleeping pills and burning himself with cigarettes. The applicant was expelled. The applicant delayed re-enrolling as he felt unprepared to study and did not attend work for several months until forced to due to his financial situation.

22. The applicant has not told his friends and returned to smoking. The applicant lost interest in other activities, including sports. The applicant’s mood improved following his mother’s recovery and he planned on beginning a Bachelor of Information Technology. The report states that the applicant experienced mental health issues which were his main reason for non-attendance. The report concludes that the applicant had a moderate level of depression and stress, and faces self-blame, low self-esteem, motivation, as well as anxiety and depression. The applicant tested as severely depressed, extremely severely anxious, and moderately stressed.

23. Received immediately after the Tribunal hearing but dated and purportedly sent (but not received) prior to the hearing were further documents and a submission. The submission reiterates circumstances previously claimed by the applicant as to why he was not enrolled. The submission also deals with changes to the applicant’s circumstances since the cancellation of his visa.

24. The submission refers to the applicant’s marriage to Tika Maya Paudel on 10 May 2020. The submission claims that they have known each other since June 2018, first meeting through Facebook before meeting in person in June 2018. Their friendship turned into a romantic relationship in September 2018. The relationship developed rapidly and they decided to get married in October 2019 and got married on 10 May 2020. They have been living together since 9 May 2020 as a married couple. 

25. Provided are documents evidencing the marriage and the Australian citizenship of Ms Paudel granted on 3 December 2019. Also provided is a curriculum vitae of the applicant.

26. It is submitted that due to the coronavirus that Nepal is in a nationwide lockdown. The Nepalese government have denied its own citizens currently out of Nepal the ability to enter the country. The government has suspended regular international and domestic flights. Therefore, at present, the applicant is not in a position to return to his own country.

27. The Tribunal assesses the claims and submissions provided by the applicant including in the Tribunal hearing and following the hearing.

28. The applicant has at the core of his claims originally indicated that there are extenuating circumstances beyond the applicant’s control for his failure to be enrolled in a registered course. The applicant has claimed that this was due to mental distress suffered by the applicant after his mother had an accident in Nepal in October 2017. The applicant has claimed that this stopped him attending classes causing his enrolment to be cancelled.

1. Initially in the hearing, the applicant indicated that at the time of the applicant’s mother’s accident in October 2017 he was studying a Diploma of Information Technology. The applicant indicated that he had been attending classes in this course up until cancellation on 6 November 2017 although the number of classes that he attended declined because of the circumstances caused by the injury to his mother. The applicant indicated in the hearing on at least two occasions that he was enrolled and studying the Diploma of Information Technology up until early November 2017. The applicant indicated that it was his understanding that it was the Diploma of Information Technology that had been cancelled on 6 November 2017 as a result of unsatisfactory attendance.

2. The Tribunal discussed with the applicant in the hearing the fact that Government records as to his enrolment history do not bare out the applicant’s claims that the injury to his mother was the cause of him ceasing or reducing attending classes in a course that he was attending at the time of the injury in October 2017.

3. This is because the Provider Registration and International Student Management System (PRISMS) indicates that the Diploma of Information Technology which the applicant had been studying since 24 April 2017 was cancelled on 2 August 2017 for unsatisfactory attendance.

4. In fact, according to the PRISMS record, the applicant was not engaged in any course at the time of his mother’s accident in October 2017. The applicant had been due to commence a Bachelor of Business Information Systems in June 2018 but this course was cancelled on 6 November 2017 due to non-commencement of studies. This would appear to be on the basis of the precursor course to the Bachelor degree, the Diploma of Information Technology, being cancelled.

5. The Tribunal put to the applicant that given this information it does not make sense as the applicant has claimed that the injury suffered by his mother in October 2017 caused him to cease or reduce classes that he was already attending because he was not presently studying any course at that point in time.

6. In response the applicant indicated that he was not aware of the cancellation of the Diploma of Information Technology on 2 August 2017. After further questioning by the Tribunal the applicant indicated that he had attended no classes at all in this course after 2 August 2017.

7. The Tribunal noted to the applicant that this evidence was inconsistent with multiple indications that he had given to the Tribunal in the hearing that he had been attending classes leading up to early November 2017.

8. The Tribunal put to the applicant that independent evidence as to his study history suggested the applicant was not telling the truth to the Tribunal in relation to the injury suffered by his mother being the cause of study difficulties. The applicant did not comment after being given a significant opportunity to do so.

9. The applicant had the opportunity to provide further explanation in the written submissions that were to be provided after the hearing. The initial written submissions did not address this issue.

10. A subsequent submission provided by the applicant on 9 June 2020 did address this issue. The submission also includes attached academic transcripts. In the submission, the applicant indicated that, in fact, he had been told by his teacher that he did not need to attend the first semester of the Diploma of Information Technology because he had prior credits from a Bachelor degree that he had studied. However, the applicant indicates that this information was not properly conveyed to the administration of the education provider causing the applicant’s enrolment to be erroneously cancelled for non-attendance. The applicant indicated that a warning letter was sent on 28 June 2017.

11. In terms of the initial claimed extenuating circumstances due to the illness of the applicant’s mother, the independent evidence makes it clear that the applicant’s unsatisfactory course attendance leading to the cancellation of his Diploma of Information Technology on 2 August 2017 was nothing to do with the accident suffered by his mother in October 2017.

12. The date of the applicant ceasing to be enrolled in a registered course on 6 November 2017 occurred at a time when the applicant was not engaged in any study and had not done so for the preceding almost three months.

13. The date of the cancellation of 6 November 2017 in fact is a product of the cancellation of the Diploma of Information Technology which occurred on 2 August 2017.

14. It is the circumstances leading to this cancellation which are relevant as to whether there are extenuating circumstances beyond the applicant’s control explaining the breach. As the applicant’s explanation that the events causing cancellation, the injury to his mother, did not occur until October 2017, the Tribunal is not satisfied that there are extenuating circumstances beyond the applicant’s control for this reason that explain or justify the breach. This is significantly adverse to the applicant in the exercise of the Tribunal’s discretion.

15. The Tribunal does not accept that the applicant would not have been informed by his education provider of the cancellation of his Diploma of Information Technology on 2 August 2017.  The applicant provided an indication following the hearing that a warning of cancellation had been sent which strongly indicates to the Tribunal that a notification of cancellation would also have been sent.

16. The Tribunal does not accept this last-minute explanation by the applicant provided following the hearing concerning a belief that attendance in the first semester had been waived because of prior credits. In the Tribunal hearing the applicant indicated that he had mistakenly thought it was the Diploma of Information Technology which had been cancelled for non-attendance. Tellingly, up to and including the hearing the applicant had claimed that this was because of mental upset due to the illness of his mother. The applicant made no claims in the hearing or prior that he did not attend classes because he had been given a waiver of attendance by a teacher. This is undermining of the truth of this claim made for the first time following a hearing.

17. Further, the applicant initially indicated in the hearing that he was attending some classes in the Diploma of Information Technology up until November 2017 (albeit missing some). Additionally, the applicant indicated that he did not know that his Diploma of Information Technology had been cancelled. The Tribunal does not consider that the applicant would forget whether or not he had been attending the first semester of the Diploma of Information Technology.  If the applicant received a warning letter of cancellation as he claims, it does not make sense that the applicant would not have contacted the education provider to clarify and make sure he was properly registered given the fact that he was exempt from the first semester. Further again, the applicant would have been given the option of seeking appeal of the cancellation of his enrolment. There is no evidence of the applicant having sought such an appeal which it would be assumed he would have done if the enrolment was cancelled for the reasons claimed.

18. For all of these reasons, the Tribunal does not accept that there are claimed extenuating circumstances beyond the applicant’s control for his failure to be enrolled in this course because the applicant had a reasonable expectation that attendance requirements had been waived in the first semester.

19. The applicant has provided a report from a psychologist which was obtained only after he received the NOICC.  In the hearing, the applicant indicated that he had not previously received medical attention. When asked why not, the applicant indicated because he did not consider it and it was only when he was advised by friends to seek help that he did so. The Tribunal noted to the applicant that his first medical attention occurring shortly after the receipt of the NOICC without ever having received medical attention before could suggest that it was done for opportunistic reasons in terms of responding to the NOICC rather than reflecting a genuine medical problem. In response the applicant said seeking medical assistance at this time was not linked to the NOICC and the timing was just a coincidence.

20. Whilst the Tribunal is prepared to accept that the applicant was upset from October 2017 as a result of his mother’s illness, the Tribunal is not satisfied that this was a cause of his failure to be enrolled in a registered course.  This was as a result of events prior to October 2017 leading to the cancellation of the Diploma of Information Technology on 6 November 2017, albeit that the technical failure of enrolment occurred on 6 November 2017.

21. Further, if the applicant had been studying (which he was not) at the time of his mother’s injury and that this caused significant mental health issues for the applicant causing him not to be able to study, then the appropriate course for the applicant would have been to have sought a deferral of his studies on compassionate and medical grounds rather than to allow the enrolment to be cancelled for unsatisfactory attendance.

22. The applicant has not been enrolled in a registered course while he held the visa for a period of approximately 10 months. In addition, he had not engaged in any study for a period of approximately 15 months. These are not insignificant periods and are adverse to the applicant in the exercise of the Tribunal’s discretion.

23. In response to the NOICC the applicant indicated that he had enrolled in a Bachelor of Information Technology. Although the applicant has provided evidence of receiving an offer in such a course, the PRISMS record does not indicate that there was an actual enrolment in such a course. Instead, the PRISMS record indicates that the applicant on 3 September 2018 enrolled in a Diploma of Information Technology due to commence on 1 October 2018.

24. The Tribunal put to the applicant in the hearing that there was no restriction on study on his bridging visa.  The Tribunal noted to the applicant that if he truly had a genuine desire to study that he would have enrolled in and progressed with either the Bachelor or Diploma course. In fact, had he studied the Diploma course he would have completed this in September 2019. The progression of such courses could also have been done as a means of demonstrating to the Tribunal a genuine desire to study. The fact of the applicant being engaged in study after the cancellation would be a positive discretionary factor in his favour.

25. In response, the applicant indicated that his family would not fund his subsequent study because of uncertainty about his visa situation. The Tribunal put to the applicant that he might well have sought to persuade his family to facilitate his study. The applicant had a not insignificant period of time in which to engage in study while he pursued his review options with the Tribunal. The applicant reiterated that his family would not pay for his studies.

26. Whilst the Tribunal accepts there would have been some degree of uncertainty for the applicant had he progressed with study following cancellation of his visa, the Tribunal would consider that a genuinely committed individual who has pursued review options to the Tribunal would understand that there was a not insignificant period in which the applicant could progress with study whilst waiting for the review process to conclude. The Tribunal draws some adverse inference from the fact of the applicant not progressing with studies since the visa will was cancelled.

27. As to hardship if the visa remains cancelled or compelling reasons to remain in Australia, the applicant indicated that his study intention is to progress with a Bachelor of Information Technology which he indicates he may be eligible to study based on credits he has received from other study. The applicant indicates that there is no particular provider or course date in mind but that a migration agent is exploring issues on his behalf.

28. The Tribunal accepts there will be some degree of hardship if the applicant is not able to progress with his desired study path in Australia. However, the Tribunal has some questions as to the genuineness of his intentions in this respect given his failure to engage in any study since his final enrolment was cancelled in November 2017.

29. It is claimed that hardship to the applicant if the visa remains cancelled is the fact that the applicant is now married to an Australian citizen and the hardship in terms of the relationship if the applicant has to return to Nepal. Ms Paudel gave evidence to the Tribunal briefly outlining the history of her relationship with the applicant leading up to their marriage on 10 May 2020, nine days before the Tribunal hearing.  The Tribunal notes that evidence on behalf of the applicant indicates that the applicant has lived with his wife only since the day before their marriage.

30. Provided following the hearing was a submission which included information outlining the history of the relationship between the applicant and his now wife. The submission indicated that the applicant would not be eligible to apply for a partner visa onshore and would need to travel offshore to apply for the visa.  Information is also provided that the applicant would not be eligible for a visa to allow a temporary stay in Australia due to the COVID-19 pandemic. The submission indicates that because of the pandemic Nepal is not allowing its own citizens to enter the country.

31. The Tribunal accepts that it would be a not insignificant hardship for the applicant and his wife to potentially be separated while the applicant is required to travel offshore to comply for a partner visa.

32. The Tribunal also accepts hardship to the applicant if the visa remains cancelled in terms of not being able to apply for a range of other visas onshore. If the visa remains cancelled, the applicant could be an unlawful non-citizen, although the Tribunal considers that the applicant would retain eligibility to hold a bridging visa.

33. Internet searches confirm that at the time of this decision Nepal has suspended incoming international flights. Whilst the applicant may not meet eligibility for a COVID-19 related specific temporary visa, there would remain eligibility to hold a bridging visa on the ground of a genuine intention to depart Australia. The Tribunal is confident that the Department would not be imposing undue hardship, such as immigration detention, on individuals who have had visas cancelled who are unable to return to their home country for valid logistical reasons due to the pandemic but have a genuine intention to depart when the situation resolves.

34. The Tribunal assesses discretionary factors adverse and favourable to the applicant. The Tribunal is not satisfied that there are extenuating circumstances beyond the applicant’s control concerning his failure to be enrolled in a registered course. The Tribunal does not consider that the applicant has been truthful in claiming that the injury of his mother created study difficulties because the applicant was not studying at that time. Those matters are significantly adverse to the applicant. Also adverse to the applicant is the applicant’s failure to have engaged in study subsequent to both the enrolment and visa being cancelled and the Tribunal’s significant questions as to whether the applicant has a genuine desire to continue to study.

35. Balanced against this, the Tribunal considers there would be not insignificant hardship to the applicant, particularly on the basis of the applicant having to travel offshore to apply for a partner visa. However, a student visa is designed to facilitate the study of the visa holder in Australia.  It is not designed as a de facto means of continuing residents in Australia based on family relationships.

36. The Tribunal is not satisfied that the significance and nature of the breach and the applicant’s lack of progression in study following the breach is outweighed by the not insignificant hardship he and potentially his wife will face if the visa remains cancelled. Weighing discretionary factors, the Tribunal determines to exercise its discretion to cancel the visa.

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

    DECISION  

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

    David McCulloch
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)  The holder (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.