Dhungana (Migration)

[2019] AATA 1275

Dhungana (Migration) [2019] AATA 1275 (11 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Samiksha Dhungana

CASE NUMBER:  1732132

HOME AFFAIRS REFERENCE(S):           BCC2017/3719864

MEMBER:Peter Haag

DATE:11 April 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 11 April 2019 at 2:31pm

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 – genuine intention to complete study in Australia – satisfactory academic progress – personal and academic recommendation letter – extra-curricular student mentoring and faculty roles – circumstances beyond the applicant’s control – financial dependence on father for timely payment of course fees – decision under review set aside

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 15 December 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 failed to comply with visa condition 8202(2)(a) because the applicant was not enrolled in a registered course of study, and the grounds for cancelling the applicant’s visa outweighed the grounds for not cancelling the 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.

3. The applicant appeared before the Tribunal on 1 April 2019 to give evidence and present arguments.

4. The applicant was represented in relation to the review by her registered migration agent.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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 of study.

9. The applicant was enrolled in a Bachelor of Engineering (Civil Engineering) at Victoria University which is located in Melbourne, Australia. The applicant commenced her studies in 2014 and remained enrolled until the end of the 2016 academic year. In evidence the applicant accepted the University cancelled her enrolment on or about 9 May 2017, for non-payment of fees for the 2017 academic year. On the basis of the evidence before the Tribunal, the applicant was not enrolled in a registered course of study at the time of the delegate’s decision. Accordingly, the applicant failed to comply with visa condition 8202(2), a mandatory condition that applied to her Student visa.

   Consideration of the discretion to cancel the visa

10. 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”.

11. On 30 May 2014 the applicant was granted a Student (Temporary) (class TU) Higher Education Sector (Subclass 573). The applicant was in Australia for the purpose of completing a Bachelor of Engineering (Civil Engineering). The opportunity afforded by the Student visa to complete a Bachelor of Engineering, and fulfil the purpose for which the applicant’s Student visa was granted, ceased upon her visa being cancelled on 15 December 2017. On a strict view, the purpose for which the applicant remained in Australia ceased on that date.

12. The Tribunal will now give consideration to the extent of the applicant’s compliance with the conditions applicable to her visa.

13. The applicant failed to comply with visa condition 8202 because she failed to maintain enrolment in a registered course of study. In evidence the applicant readily admitted she was not enrolled in the relevant course of study, a degree level course in Engineering, from 9 May 2017 to the date of the hearing, and that she has not been enrolled in a registered course of study from that time to the date of the hearing.

14. Bearing in mind the foregoing matters, for reasons discussed later in this decision, the Tribunal finds the applicant complied to a substantial degree with her obligation to maintain enrolment in a registered course of study. This finding included findings that the applicant’s intention to complete the Engineering degree in Australia has been a continuous intention, unaltered by the cancellation of her Student visa, and that her purpose for remaining in Australia is to complete her Engineering studies in Australia.

15. The applicant has not studied since the cancellation of her Student visa because her Bridging visa does not allow her to do so.

16. The applicant was continuously enrolled in the Engineering course from the time she commenced the degree in 2014 to the beginning of the 2017 academic year. The Tribunal notes the applicant failed one subject in 2015, one subject in the first teaching period of 2016, and one subject in the second teaching period of 2016. Nevertheless, the applicant’s academic progress, which is set out in the Victoria University Academic Transcript provided to the Tribunal by the applicant during the hearing, demonstrates she made satisfactory academic progress throughout the time she was enrolled.

17. The applicant provided to the Tribunal a letter dated March 25, 2019 on Victoria University letterhead. The letter purports to be signed by Dr Rudi van Staden, Civil Engineering Course Chair at Victoria University. The letter is addressed to “Whom It May Concern”, and it is described by the author as a letter of personal and academic recommendation for Miss Samiksha Dhungana, the applicant in this review hearing. In summary, Dr van Staden commends the applicant on the basis she is a diligent student who is respected by the Civil Engineering academic staff and her student peers. Dr van Staden says of the applicant that she “achieved outstanding grades in many of the units undertaken during 2014 to 2016.” Dr van Staden also remarked that the applicant “demonstrated during her studies at VU, she has the makings of a great Civil Engineer.”

18. Dr van Staden also commended the applicant for acting as a mentor to her fellow engineering students. Relevantly, the Tribunal notes the applicant, during the hearing, provided a Certificate to the Tribunal which certified that the applicant successfully performed duties as a student mentor from semester one 2015, to semester two 2016. The Certificate was awarded to the applicant in November 2016. The certificate is signed by four senior members of the academic staff of the College of Engineering including Associate Professor Dr Thinh Nguyen.

19. Dr van Staden also commended the applicant for being selected to engage with Engineers Australia on behalf of the College of Engineers. Dr van Staden noted the prestigious nature of the role.  This is an understandable characterisation of the applicant’s role because Engineers Australia is, according to the applicant’s evidence, the entity responsible for accrediting engineers to practise engineering in Australia, and that their accreditation is recognised worldwide.

20. The applicant gave evidence to the Tribunal to the effect that from the time she obtained her Student visa up to the present time her motivation and intention to complete a degree in Engineering in Australia has not changed: the applicant claims, and the Tribunal accepts, the applicant’s intention is to complete a degree in Engineering, and completion of that degree in Australia is her intended purpose for remaining in Australia.

21. Dr van Staden indicated the applicant had three semesters of study (that is one and a half years) remaining to complete the Bachelor of Engineering. In evidence the applicant informed the Tribunal that if she were permitted to complete the degree, she is confident she would complete it in one academic year because, between semesters she would undertake the additional subjects needed to complete the course. The Tribunal accepts this evidence.

22. The Tribunal gives weight in favour of the applicant to the assessment Dr van Staden made of the applicant’s constructive attitude and potentiality to be a “great Civil Engineer”, and the applicant’s satisfactory academic performance.

23. The Tribunal gives weight in favour of the applicant, to the period of time the applicant was enrolled at Victoria University (three academic years), her overall academic progress, her continuing intention to complete a degree in Civil Engineering in Australia, and subsequently to work in her home country as a practising engineer. 

24. On the basis of the considerations above, the Tribunal finds the applicant’s state of mind during the currency of her visa was to remain enrolled, to progress satisfactorily in the course of study and complete it in Australia.

25. In combination, the foregoing considerations lead the Tribunal to conclude the applicant has consistently maintained her initial intention to comply with the visa conditions: the applicant’s satisfactory academic progress is consistent with her intention to maintain her enrolment in the course; the applicant’s extra-curricular Student mentoring and Faculty roles are consistent with the applicant maintaining a commitment to the Engineering faculty, completing the course in the Faculty and maintaining enrolment in the course.

26. Giving weight in favour of the applicant to the foregoing considerations, and the three consecutive years the applicant was enrolled in the course, and the consequential financial investment in the course, leads the Tribunal to find the applicant maintained an ongoing intention to comply with, and in fact complied, to a substantial degree, with the visa condition requiring her to maintain her enrolment in a registered course of study.

27. According to the applicant’s evidence she continues to rely on her parents for financial support and they have continued to provide that support since her Student visa was cancelled. Since cancellation of the visa, the applicant keeps herself as busy as possible in order to protect herself from “spiralling into depression”. She joined a football club, plays football and socialises with members of the club.  The applicant has also undertaken voluntary work. The applicant gave evidence to the effect that she has complied with the conditions of her Bridging visa.

28. The Tribunal will now consider the circumstances in which the ground for cancellation of the applicant’s enrolment arose.

29. The exact date on which Victoria University cancelled the applicant’s enrolment is unclear. As far as the Tribunal is able to ascertain from the evidence, the cancellation may have occurred on or about 9 May 2017.

30. The applicant depended on her father for payment of the course fees.  He resides in Nepal where, according to the evidence he is a highly placed government official responsible for forestry related matters. He travels frequently outside Nepal on Government business. The fees for the 2017 academic year did not arrive in Australia until shortly after the applicant’s enrolment was cancelled: the applicant is unaware of the reason for the delay.  The applicant gave evidence she just kept on hoping and expecting her father would transfer the fees in time to meet the Universities’ requirements.

31. The applicant claims in information provided to the Department, that she first attempted to pay her fees on 3 April 2017 via her Student Portal (MyVUPortal). That first attempt occurred after she was notified by the University on 3 April 2017 that she was at risk of the University cancelling her enrolment due to non-payment of fees. The applicant’s online payment was rejected, and the online payment system notified the applicant that a systems error had occurred. The applicant made further unsuccessful attempts to pay the fees via the Student Portal.

32. According to information the applicant provided to the Department, the applicant was first notified by the University in writing on 11 April 2017, that the University had in fact cancelled the enrolment. (The applicant claimed she had not received earlier messages the university apparently sent to her mobile phone number advising her that her enrolment was at risk of cancellation.) 

33. After the applicant’s failed online payment attempt on 3 April 2017, the applicant made a number of further unsuccessful attempts to pay the fees via the Student Portal. The applicant paid the total amount of outstanding fees, $6,750, in person over two days, 21 April and 22 April 2017. The payment was initially accepted by University staff but ultimately the University refunded the fees and her enrolment was not accepted.  The applicant took advice from Student advisors, and submitted to the University letters of support from academic staff, as part of her unsuccessful endeavours to re-enrol in the course.

34. The applicant lodged a complaint with the University and another with the Ombudsman about the refusal to re-enrol her but to no avail. On 15 December 2017 the delegate decided to cancel the applicant’s visa.

35. The applicant did not apply to the University for an extension of time in which to pay the fees.

36. According to the applicant’s evidence, she did not apply to the university for more time to pay the enrolment fee because she believed her father would provide the funds in time. The applicant also believed, wrongly as it turned out, the University would re-enrol her and she would be able to continue her studies. The Tribunal can readily understand how the applicant came to hold that belief.  The applicant was a high profile contributor to University life through her extra-curricular activities, she was held in high regard by senior members of the Faculty of Engineering, and she had attained what the Chair of the Engineering faculty judged to be satisfactory academic progress during the applicant’s three years of study. The Tribunal accepts the applicant reasonably believed the University would accept her enrolment despite late payment of her fees, and that she intended genuinely to complete the course.

37. The Tribunal notes the applicant did not immediately notify the Department of the cancellation of her enrolment. She should have done so and this consideration weighs against the applicant in this review hearing.

38. The Tribunal finds the cancellation of the applicant’s enrolment, and the circumstances that gave rise to that cancellation does not amount to evidence the applicant was no longer committed to the original purpose for which the Student visa was granted to her, namely, completion of the course of study in Australia.

39. Whilst the applicant was in error in failing to apply to the University for an extension of time in which to pay the fees, and in failing to notify the Department that her enrolment was in issue due to non-payment of fees, nevertheless, the Tribunal finds the applicant held a reasonable belief her father would transfer the required funds in time, until it was too late for that to occur and her enrolment was cancelled.

40. The essential circumstances that gave rise to the cancellation of the applicant’s visa are these: the applicant’s financial dependence on her father for timely payment of the fees; the applicant’s reasonably held belief that her father would pay the fees on time, and his failure to do so. The Tribunal gives weight to these circumstances in favour of the applicant, and finds the circumstances which initiated the cancellation of the enrolment were beyond the control of the applicant, and that, but for the failure of the applicant’s father to transfer the fees in a timely manner, the applicant’s course would not have been cancelled, and that the applicant would have continued to make satisfactory academic progress to completion of the course.  

41. The Tribunal finds the degree of hardship that may be caused to the applicant and her father and mother by the cancellation of the applicant’s Student visa, and her failure to complete the course of study in Australia, is likely to be burdensome.  The applicant indicated in evidence that she, and her parents, would be humiliated and distressed by her academic failure in Australia. This is a credible outcome of the cancellation, particularly in view of the applicant’s evidence to the effect that her father completed a Masters level degree at Melbourne University and years later, a PhD at Monash University and that he is currently a senior government official in the applicant’s home country.  The Tribunal gives this consideration slight weight in favour of the applicant.

42. There is no evidence before the Tribunal of past or present negative behaviour of the applicant towards the Department. The Tribunal gives slight weight to this consideration in favour of the applicant.

43. There is no evidence of any consequential cancellation of another person’s visa under s.140 of the Act that would result from the cancellation of the applicant’s visa. The Tribunal gives no weight to this consideration.

44. The Tribunal has considered potential legal consequences that may follow from cancellation of the visa including an overarching legal requirement to promptly leave Australia, subject to any latitude that may be granted to the applicant under a relevant Bridging visa. The applicant may be liable to detention and subsequent removal from Australia if she does not voluntarily leave Australia. The applicant will be subject to s.48 of the Act and have only limited options to make an application for another visa in Australia.

45. The Tribunal notes, if the applicant’s visa is cancelled, she will incur a penalty in the sense that if she lodges a new visa application that requires the applicant to meet Public Interest Criterion 4013, the application may not be approved within three years following the cancellation.

46. There is no evidence cancellation of the visa would lead to the applicant being held in indefinite detention or detention as a consequence of the cancellation.

47. A Bridging visa would permit to the applicant sufficient time to attend to any outstanding matters in Australia before she departed Australia.

48. The Tribunal gives no weight in favour of the applicant to the potentiality that she may suffer certain legal consequences (discussed above) under Australian law from the cancellation of the visa.  The intended consequences of the application of Australian law to the applicant should not to be used to ameliorate the ordinary application of Australian law to the applicant.

49. No relatives of the applicant are present in Australia and there is no evidence of the applicant having business interests in Australia.

1. There are no other relevant matters to consider.

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

   DECISION

3. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

   Peter Haag
   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.