Gharti Magar (Migration)

[2024] AATA 3079

Gharti Magar (Migration) [2024] AATA 3079 (20 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Sabnam  Gharti Magar

REPRESENTATIVE:  Mr Thapa Biwek (MARN: 0747526)

CASE NUMBER:  2305155

HOME AFFAIRS REFERENCE(S):          BCC2022/4247899

MEMBER:Penelope Hunter

DATE:20 August 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 20 August 2024 at 11:10am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered course – applicant ceased studies – applicant changed courses – family bereavement – marriage breakup – financial hardship – mental health issues – decision under review set aside 

LEGISLATION

Migration Act 1958, ss 48, 116, 140, 189, 198
Migration Regulations 1994, Schedule 4 Public Interest Criterion 4013; Schedule 8; Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 30 March 2023 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).

2. The delegate cancelled the visa on the basis that the applicant was found not to have complied with a condition of his visa. The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 19 August 2024, via MS teams video to give evidence and present arguments. The applicant was represented in relation to the review, and her representative also attended the hearing.

4. 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

   Background

5. The applicant is a 24 year old female citizen of Nepal. She was granted the visa to undertake studies in Australia up until 21 August 2023. This visa was subject to conditions, including condition 8202.

6. On 20 February 2023, the Department wrote to the Applicant with a Notice of Intention to Consider Cancellation (NOICC) under s 116(1)(b) of the Act. The applicant was informed that a ground for cancellation of her visa may exist and she was invited to provide comment.

7. In response to the NOICC, on 24 February 2023, the applicant provided a letter of submissions to the Department, a Confirmation of Enrolment (CoE) in a Diploma of Community Services with course dates from 30 January 2023 to 26 January 2025, created on 5 January 2023, a screenshot of a summary of her course attendance in February 2023 and receipts for the payment of counselling dated 18 November 2022, 26 November 2022, 2 December 2022, 9 December 2022, 23 December 2022, 13 January 2023 and 20 January 2023. In her letter of submission the applicant set out the following information (in summary):

   i.She arrived in Australia in June 2019 and struggled with her studies, although she tried to focus she did not perform well.

   ii.In October 2019, her brother died in a bike accident. It took time for her to recover from his death and his death caused financial hardship for her family.

   iii.The COVID-19 pandemic caused additional hardship for her family and it also frightened her and isolated her from her friends.

   iv.She tried to restart her studies at Stots College but could not continue. She felt guilty asking her family to support her when they were all living with the uncertainty of COVID. She was also withdrawn from her family as she was worried about hurting their feelings if she let them know of her situation.

   v.Her husband applied for a Subsequent Student entry visa and this was also refused.

   vi.She realised that she needed help and since November 2022 she had been visiting a counsellor on a regular basis.

   vii.She did not maintain the conditions of her visa due to exceptional circumstances over which she had no control. She did not intend to breach her visa condition in the future.

8. On 4 March 2023, the applicant submitted a copy of the death certificate of her brother.

9. The delegate considered the submissions of the applicant, however determined that the visa should be cancelled.

10. On 12 April 2023, the Tribunal received an application for review from the applicant.

11. On 19 August 2024, the applicant filed the following documents with the Tribunal:

    i.Written submission of the applicant’s representative.

    ii.Report dated 9 August 2024, of Billi Rufati Counselling.

    iii.Registration of death certificate of the applicant’s brother.

    iv.Balance certificate dated 15 August 2024 issued by the Citizens Bank in respect of an account held by Nabin Gharti Magar.

    v.Relationship Certificate.

    vi.Decision record of the delegate under review.

    vii.Income certificate.

    viii.Tax clearance certificate for the father of the applicant.

    ix.Work reference for the applicant dated 7 August 2024 from AB Medical & Dental.

    x.Work reference for the applicant from Linked & Connect Care Services.

    xi.Curriculum Vitae of the applicant.

    xii.Transcript of academic record from Randwick College, in the Bachelor of Early Childhood Education and Care.

    xiii.Letter to the Applicant dated 5 August 2024 regarding the grant of a Bridging visa E.

    xiv.Letter of offer of enrolment, dated 6 August 2024, addressed to the applicant from Signet Institute for enrolment in a Diploma of Dental Technology.

    xv.Copies of the applicant’s school leaving certificate and academic transcript.

    xvi.Pearson PTE Academic Score Report for a test undertaken on 9 August 2024.

    Did the applicant comply with Condition 8202?

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

    ·be enrolled in a 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 achieving satisfactory course attendance as specified: 8202(2)(c)(ii).

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

14. The applicant confirmed at the hearing that she was aware that there were conditions attached to her visa. Further she acknowledged that one of those conditions was that she should maintain enrolment.

15. The applicant was asked whether she was aware of the reason that her visa was cancelled and she said that it was because she could not complete her course.

16. The Tribunal discussed with the applicant the information contained in the decision record of the delegate that her Provider Registration and International Student Management System (PRISMS) records indicate that her enrolment in the Bachelor of Community Services was cancelled on 12 November 2021 due to non-payment of fees and her next enrolment in a registered was not until 5 January 2023, when she enrolled in a Diploma of Community Services. She did not dispute to the Tribunal that she was not enrolled in a registered course of study between 12 November 2021 and 4 January 2023.

17. Consequently, the Tribunal finds on the evidence before it that the applicant was not, between 12 November 2021 and 5 January 2024, enrolled in a full time registered course. Accordingly, the applicant has not complied with condition 8202(2)(a).

    Consideration of the discretion to cancel the visa

18. 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 Procedural Instruction ‘General visa cancellation powers’.

    the purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

19. The purpose of the applicant’s visa was for her to undertake study. The applicant was initially granted a student visa to undertake study in a Bachelor of Early Childhood Education. She told the Tribunal that she started this course and studied for one semester but was not interested in the course material or ongoing employment in the field. She then transferred to a Bachelor of Community Services. While studying this course she received news her brother had been killed in October 2021 and she was unable to make payment of course fees. The applicant confirmed that she had not achieved any qualification in Australia since her arrival in 2019.

20. She said that she wished to have her visa reinstated so that she could return to study. She had obtained a conditional offer in a Diploma of Dental Technology. During her time in Australia she had been working as a dental assistant, she enjoyed the work and wished to build a career in dentistry. The applicant claimed that courses with similar practical components that were up to date with relevant technology and procedures were not readily available in her home country. She further claimed that she had not studied while awaiting review because she believed that she was not permitted to do so as part of her bridging visa. Her previous agent had not taken any action on her behalf, she had only recently obtained new representation who arranged for this condition to be lifted from her visa.

21. The applicant said that she had spent five years in Australia and she would feel like a failure if she was required to return without qualifications. She did not want to be a failure as a daughter and her family had made significant financial sacrifices for her to travel and study in Australia.

22. The Tribunal discussed with the applicant concerns about her change in courses and whether this indicated that she was using the student visa to remain in Australia. The applicant said that this was not the case and that with her initial enrolment she had relied on the advice of agents, she was young and inexperienced and it took her some time to find her way with her career. It is noted that the applicant obtained a further enrolment in the Diploma of Community Service on 5 January 2023, prior to the receipt of the NOICC. She told the Tribunal that she started to take steps to return to study in November 2022 when she commenced counselling. She said that she had engaged the assistance of an education consultant around this time to arrange an appropriate enrolment. It is accepted that the applicant engaged again with study prior to the visa cancellation not purely for the purposes of the visa.

23. The Tribunal accepts the evidence of the applicant that she desires Australian qualifications. It has reviewed the academic transcript she has submitted and accepts that she did make some attempt at her initial studies. It also accepts that the applicant was a teenager when she arrived in Australia and had not undertaken any study post high school. It accepts her claims that she has made reasonable course adjustments to suit her interests, skills and capabilities.

24. The Tribunal has also had regard to the financial evidence presented in respect of her family’s ability to support her for future studies. It accepts that their financial position has improved and that the applicant will not be without financial support in the future.

25. The Tribunal gives this factor some weight in favour of not cancelling the visa.

    The extent of compliance with visa conditions

26. The applicant did not maintain enrolment for over a year (13 months). The applicant has acknowledged that she was aware it was a condition of her visa that she maintain enrolment. The duration of the applicant’s non-compliance is a matter of considerable concern and engaging in study goes to the core purpose of the visa.

27. There is no evidence before the Tribunal that the applicant has not complied with any other conditions of the visa under consideration.

28. The Tribunal gives this factor some weight in favour of the cancellation of the visa.

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

29. The applicant explained to the Tribunal that she experienced considerable hardship already following the death of her brother, her concern for her family during the COVID-19 pandemic, her isolation from her family and friends during the COVID-19 pandemic and her disappointment at her initial attempts at study. While awaiting review her marriage also broke down. She claimed to have endured a lot in the pursuit of Australian qualifications and to have to return home without them would be a further psychological and emotional blow.

30. Additionally, she had the expectations of her family that she obtains some qualifications. They had made financial sacrifices so that she could study in Australia, this would have been wasted if her visa was not reinstated. She said that she would be considered the bad daughter.

31. The applicant also said that she did not think that she could return to study if she was required to depart Australia. This would be for a couple of reasons firstly because she did not think that she would have the confidence to return. Secondly, if she disappointed her family and went back to Nepal without qualifications she did not consider that she could ask them to assist her with any further study in the future. If the visa remained cancelled she claimed it would have a significant adverse effect on her future.

32. The Tribunal notes the evidence that the applicant has previously suffered psychological difficulties and undertaken counselling. The Tribunal further acknowledges and accepts the claims of the applicant that if the visa remains cancelled, and if she is required to depart Australia it will cause further emotional and psychological hardship. It also accepts that there will be financial consequences for the applicant which may impact on the potential for her to undertake further study in the future.

33. On balance this factor weighs against the cancellation of the visa.

    Circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

34. The immediate reason that the applicant’s enrolment in the Bachelor of Community Services was cancelled was due to non-payment of fees. The applicant claims that her family income was affected by the COVID-19 pandemic and then they suffered a further blow with the sudden death of her brother who was a major financial support for her family. The applicant said that her brother was the operator of a lucrative business in Nepal. The applicant claimed that her brother was her main source of financial support. When questioned by the Tribunal she said that she had tried to seek and extension from her education provider but they were unable to assist her.

35. The Tribunal notes the evidence presented by the applicant of the death of her brother in October 2021. It is also accepted that the death of the applicant’s brother and the impact of the COVID-19 pandemic were factors outside her control.

36. By way of explanation for the duration of her non-enrolment, the applicant told the Tribunal that she was also previously struggling with her studies. She was not performing as she expected and although she tried to focus she felt overwhelmed. She young and also newly married when she arrived. Her husband was refused a visa as a subsequent visa entrant. She was alone and without any family support. The applicant said that she was not able to emotionally manage her situation. She acknowledged that it took her some time to request assistance and start counselling. This was impacted by two factors firstly she did not have the funds to seek assistance. Additionally, she said that she was depressed, she felt ashamed and a failure and struggled to ask for assistance. The Tribunal has had regard to the report of Ms Rufati, which confirms the applicant underwent seven counselling sessions between November 2022 and January 2023. Further, that the applicant presented at the time with significant symptoms of grief and lose, depression and anxiety which impacted her mental emotions, physical and social well-being.

37. The Tribunal accepts that the applicant’s mental health and her financial circumstances played a factor in the duration of her non-enrolment.

38. On balance this factor weighs against the cancellation of the visa.

    Past and present behaviour of the visa holder towards the Department

39. There is no evidence that the applicant has not been cooperative in her dealings with the Department.

40. The Tribunal gives this factor some weight in favour of not cancelling the visa.

    Whether there would be consequential cancellations under s 140

41. There is no evidence that any other person’s visa would or may be cancelled if the applicant’s visa remained cancelled. There is no weight attributed to this factor.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

42. There are mandatory legal consequences that may apply in the case of visa cancellation, including a difficulty obtaining a further visa. If the visa is cancelled the applicant may be subject to a restriction under s 48 of the Act and the applicant would have difficulties obtaining any further visas in Australia. Due to the operation of PIC 4013, the applicant would also be unable to be granted further visas offshore for three years from the date of cancellation.

43. The applicant also told the Tribunal that if the visa remained cancelled and she had exhausted or ceased all lawful avenues of review, she would abide by any lawful direction to depart. The Tribunal is satisfied in these circumstances that the likelihood of the applicant being detained is remote.

44. It is accepted that cancellation would have further consequences and these would limit his options to immediately return to Australia and complete her proposed study. This however is the intended consequence of cancellation.

45. The Tribunal gives this factor this neutral weight.

    Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation 

46. The applicant is a citizen of Nepal. The Tribunal asked the applicant if she had any fears about returning to his home country and she said that she had now turned 24, she had wasted a lot of time already and if she was required to go back to her home country now she did not believe she would again have the ability to study and gain an education. The applicant has not made and claims, and there is no evidence before the Tribunal, that any international obligations are engaged.

47. She does not have any children whose interests would be affected by the cancellation of his visa.

1. The Tribunal gives this factor no weight

   Conclusion

2. The Tribunal has considered the applicant’s circumstances and weighed the relevant considerations as discussed above. In balancing these matter it is satisfied that as a whole there are aspects that are significantly favourable to the applicant as discussed above. Particularly considering the reasons the grounds for cancellation arose, the purpose of the visa and the applicant’s stay in Australia, the degree of hardship and her cooperation with the Department.

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

   DECISION

4. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

   Penelope Hunter
   Member

   
   

   ATTACHMENT

   Migration Regulations 1994

   …

   Schedule 8

   8202(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.