Ghimire (Migration)

[2020] AATA 2745

Ghimire (Migration) [2020] AATA 2745 (5 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Milan Ghimire

CASE NUMBER:  1901680

HOME AFFAIRS REFERENCE(S):          BCC2018/4306668

MEMBER:Donna Petrovich

DATE:5 June 2020

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 05 June 2020 at 1:08pm

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 – purpose of stay – continued studies after visa was cancelled – length of non-enrolment – relationship breakdown – demonstration of commitment to complete current studies – 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 23 January 2019 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 delegate cancelled the visa on the basis that the applicant remained un-enrolled from 29 January 2018 until 4 January 2019 a period of approximately 11 month, after suffering from anxiety after a break up with his girlfriend at the time. 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 6 May 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner Panchal Pont and his friend Sanni Shahi.  

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

5. 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?

6. 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).

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

8. The applicant was not enrolled in a registered course and did not maintain enrolment from 20 January 2018 until 4 Jan 2019, and remained un-enrolled for a period of 11 months. The applicant was originally enrolled in a Bachelor of Business at Kings Institute in Sydney and dropped out after second semester.  He then undertook a Diploma of accounting. He is currently undertaking a Bachelor of Accounting in Hobart.

9. 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).

   Background

10. The applicant is a 23 year old man from Nepal and both his mother and father live in Nepal, he is the eldest son his only sister lives in Hobart.  His father runs an agricultural supply business, supplying trees and agricultural equipment.  He told the Tribunal “he was in a sensitive relationship” with a girl which broke down and the applicant could not focus on his studies when the relationship broke down. He did not seek a deferment from his education provider, and did not tell the education provider of his issues, or seek advice from them. He did seek psychological testing, but did not receive a diagnosis or receive any treatment.  He spoke to his friends and some others and asked for advice. He has not travelled overseas or returned home to visit family since his arrival in 2016.

11. He told the Tribunal that he “was doing everything through his education consultancy”; they did not contact the Department on the applicant’s behalf regarding his difficulties, and he did not tell them himself.  The applicant did not employ a Migration Agent, and told the Tribunal that he has done everything himself in relation to his appeal.

12. The applicant lives with his partner, who he has been together with since February 2019.  They share a property with another couple in Hobart.

13. The applicant told the Tribunal that his Sister, who lives 10 to 20 minutes away from him and his girlfriend in Hobart, and had been very supportive. He told his sister of his difficulties with his study and she had advised that he come to Tasmania to study where he commenced his Diploma of Accounting again, which he re-did because he had been away from study for so long (from 7 January 2019 and finished 5 September 2019).  The Applicant is currently studying Bachelor of Accounting at the University of Tasmania in Hobart.  He has almost finished his first semester and is doing well in his studies. The applicant has 3 years full time study remaining, he forwarded his current certificate and will complete study in 2022.

14. He explained that he works at Coles on a casual basis, for Coles services looking after the cleaning and maintenance of the supermarket.  He has worked for Coles for 2 years and worked part time permanent in Sydney 20 hours per week.  In Hobart his contract was cancelled and he works 5-6 hours as result of Covid-19. He is positive about his studies and says he is focused on that, and is able to support himself with the help of his parents and sister, and part time work at Coles.     

15. He is the first son of his parents and will go home to his mother and father, and help his father in his agricultural and farming shop which sells trees and equipment. He wants to finish his studies and go home and expand this business. The applicant’s girlfriend says that when he has completed his study they will get married and return home. She will finish her course in 2022 and then they will go home and take care of the family business.  They have spoken to both his and her parents and they are happy with the relationship and that they will go home together.

16. The Tribunal also received evidence from the applicant’s friend Sanni Shahi (the applicant calls him ‘brother’). They knew each other from Sydney and have known each other since the applicant arrived in Australia in 2016. Sanni Shahi told the Tribunal that the applicant had a previous girlfriend and they lived together, having lots of arguments. He did a police report when his girlfriend did not come home, he reported her missing and was very worried for her wellbeing.  He did not know that she was cheating on him. And told the Tribunal he was very stressed at that time.

17. When he and his previous girlfriend broke up, she left him in 2017, which in the evidence submitted is when he became very depressed and he couldn’t focus.  When he met his current girlfriend he told the Tribunal that she helped him with his mood and in trying to get a new enrolment, but he was unsuccessful in obtaining his enrolment at this time.    

18. He told the Tribunal that he is now well and very focused on his studies. He is doing well in his classes and achieving good results.

    Consideration of the discretion to cancel the visa

19. 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 holders Travel and stay in Australia

20. The applicant told the Tribunal that the purpose of his stay was to study a Bachelor of Business so that he can return to Nepal to assist his father in the running of the family business. The applicant has continued his studies since his visa was cancelled and is making some progress. In light of the applicant’s age and the endeavour undertaken by the applicant to seek enrolment and continue study in his chosen course of study, and the effort he has taken to ensure his academic success by repeating the Diploma of Accounting to refresh his knowledge, in this case the Tribunal finds that these reasons are favourable to consider exercising discretion not to cancel.  The Tribunal in consideration of this has given some weight in the applicant’s favour.

    The extent of compliance with visa conditions

21. The Applicant did not meet his visa conditions and remained un-enrolled for a period of 11 months after letting his enrolment lapse through non-payment of course fees.  The Tribunal in considering this takes the view that 11 months is a significant breach of the applicant’s visa conditions and as such the Tribunal places some weight not in the applicant’s favour.

    Degree of Hardship that may be caused

22. The applicant did not express in detail hardship that may be caused by the cancellation of his visa; only his desire to complete his study, and to go home to help his father with his family business. He spoke of his parents needing his help as they get older and requiring his support as he is their only son. The Tribunal places some weight on this consideration as the applicant would experience some hardship in not achieving his objective of his qualification in a Bachelor of Business.  The Tribunal places some weight in the applicant’s favour in this regard.

    Circumstances in which the ground for cancellation arose

23. The applicant told the Tribunal that he became very anxious and could not concentrate when his relationship with his girlfriend broke down.  The relationship was a difficult one and the couple argued frequently.  The applicant told the Tribunal that he had reported his girlfriend missing to the police when she did not return home, and later found out that she was having an affair and unfaithful to him, which was a great shock to him and he could not face going to school and was anxious and unable to concentrate.

24. The Tribunal received evidence from Sanni Shani who told the Tribunal that he was extremely worried about his friend who had no interest in anything after he broke up with his girlfriend, and he recommended that he seek help. The witness told the Tribunal that the applicant had not been able to function and spend large amounts of time crying and alone. The witness told the Tribunal that the applicant had recovered after he met his current girlfriend who was very supportive and encouraged the applicant to resume his studies.  The couple have since relocated from Sydney to Hobart, to be near the applicant’s sister and has since enrolled and undertaken studies which he is passing and enjoying.  The Tribunal in considering this case has formed the view that the applicant was overcome and unable to focus on his studies during this period.  The applicant is now 23 years old and he will complete his current studies and return home to the family business upon the completion of the Bachelor of Business he is currently undertaking.  The Tribunal places significant weight in favour of considering exercising discretion not to cancel in this case, particularly as the young man has made a significant effort to regain his enrolment and continue his studies as a demonstration of his commitment to achieving his goals and returning home with his current girlfriend to work in the family business.   

    Past and present behaviour of the visa holder towards the department

25. The applicant has been cooperative and courteous in all his dealings with the Tribunal.  No adverse information has been provided to the Tribunal and as such some weight is given to him in consideration of this factor.

    Person in Australia whose visa would be cancelled under s140.

26. There is no one whose visa would be cancelled, as his partner has a student visa and is studying childcare.  He is living with his girlfriend Aanchal Pont, who gave evidence that “he was unable to focus on anything, and really depressed, and that on completion of his studies he wants to go back to his home country.”

    Whether any international obligations including non-refoulment and best interest of the children would be breached

27. This is not a consideration in this case as the applicant has no children at the time of this decision; therefore the Tribunal gives this neutral weight. 

    If it is a permanent visa, whether there are strong family, business or other ties in Australia

28. The applicant told the Tribunal that he has strong ties to his home country and his mother and father and the family business, although his sister lives in Tasmania both he and his girlfriend told the Tribunal that their priority was to return to their homeland. The Tribunal places neutral weight in this regard as the applicant has not applied for a permanent visa.   

29. Any other matters

    Having considered the evidence presented by the applicant and his girlfriend and witness who appeared before the Tribunal and before the delegate, the Tribunal is satisfied that there are no other matters in relation to this case.

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

    DECISION

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

    Donna Petrovich
    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.