K C (Migration)

[2023] AATA 2187

K C (Migration) [2023] AATA 2187 (29 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mausam K C

REPRESENTATIVE:  Mr Prakash Srinivasan (MARN: 0960121)

CASE NUMBER:  2209828

HOME AFFAIRS REFERENCE(S):          BCC2022/298188

MEMBER:Peter Newton SC

DATE AND TIME OF

ORAL DECISION AND REASONS:         29 May 2023 at 3:45pm (NSW time)

DATE OF WRITTEN RECORD:                21 June 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal set aside the decision under review and substitutes a decision not to cancel the Applicant's subclass 500 (Student) visa.

Statement made on 21 June 2023 at 3:35pm

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – applicant did not comply with condition 8202  – was not enrolled in a registered course – applicant was not aware that the education provider had ceased providing or delivering the course – cancellation of the Bachelor of Business course was beyond the Applicant’s control – there is a compelling need for the Applicant to remain in Australia to obtain an education –– not satisfied that the stated ground for cancellation in s 116(1)(e) exists – power to cancel the applicant’s visa does not arise – decision under review set aside

LEGISLATION
Migration Act 1958, s 116

APPLICATION FOR REVIEW

1. This is an application for review of a decision made on 4 July 2022 by a delegate of the Minister for Home Affairs (Department’s Decision), cancelling the Applicant’s Subclass 500 (Student) Visa under section 116(1)(b) of the Migration Act 1958 (Cth) (Act). The delegate cancelled the visa on the basis that the Applicant was not enrolled in a registered course at the same level as or at a higher level than the registered course or courses in relation to which the Applicant’s visa was granted.  The issue in the present case is whether that ground of cancellation is made out, and if so, whether the visa should be cancelled.

2. The Applicant appeared before the Tribunal at the hearing on 29 May 2023 to give evidence and present arguments.  The Applicant was represented by his Migration Agent, Mr Srinivasan, who also appeared at the hearing and made submissions for and on behalf of the Applicant. The Applicant was assisted in relation to the review by an interpreter in the Nepalese and English languages. 

3. For the following reason, the Tribunal has concluded that the decision to cancel the Applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. The issue in the present case is whether the Applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (Cth) (Regulations). If the Applicant has breached the condition, under section 116(1) of the Act, the Visa may be cancelled.

5. Condition 8202, as it applies in this case, is set out in the Department’s Decision.

6. In the present case the Applicant’s Visa was cancelled on the basis that the Applicant was not enrolled in a fulltime registered course and consequently had not maintained enrolment in a registered course that, once completed, will provide a qualification within the Australian Qualifications Framework (AQF) that is at the same level as, or a higher level than, the registered course in relation to which the Visa was granted. 

7. I have been assisted at the hearing by the helpful written and oral submissions by Mr Srinivasan.  During the hearing the Applicant said or accepted that he had been provided with these submissions and he agreed with their contents.

8. The Applicant’s Student Visa was granted for the following package of courses:  (a) General English course (Intermediate and Other Intermediate); (b) Diploma of Business; and (c) Bachelor of Business (Business Management).

9. The Applicant completed the General English course (Intermediate and Other Intermediate) and the Diploma of Business course.  The Applicant completed the Diploma of Business course on 1 April 2022.  The Applicant has provided to the Tribunal a certificate from the education provider (Elite Education Vocational Institute) certifying the Applicant completed this course.  Having completed this course it was the Applicant’s intention to undertake the Bachelor of Business course which he was scheduled to complete at the same college. 

10. The Applicant received a notice of intention to cancel for non-commencement of studies.  He received this on or about 3 June 2022.  It was at this time that the Applicant discovered that his enrolment in the Bachelor of Business course had been cancelled.  This was beyond his control.  The Applicant’s enrolment was cancelled because the education provider was ‘unable to deliver the course’.  This is confirmed in PRISMS’ notes created on 25 February 2020 which was provided to the Tribunal.

11. At the time the Applicant was not aware that the education provider had ceased providing or delivering the course.  On 10 July 2022 the Applicant sent an email to the education provider requesting information in relation to the course.  He received an email from the education provider on 11 July 2022 which states:

    Your Bachelor of Business COE was cancelled on 25/2/2020 due to provider unable to deliver course.

12. In response to this, the Applicant enrolled in a fresh package of courses comprising the Certificate IV in Commercial Cookery course, the Diploma of Hospitality Management course, and the Graduate Diploma of Management (Learning) course.  Mr Srinivasan submits that these courses of study effectively maintained enrolment at the same level as, or a higher level than, the registered course or courses in relation to which the Visa was granted.  Mr Srinivasan says that the Graduate Diploma of Management (Learning) course is a higher level than the Bachelor of Business course.

13. The Applicant commenced studying the Certificate IV in Commercial Cookery course. However, on 4 July 2022 the Applicant received notification of cancellation of his Visa under section 116 of the Act. The Applicant’s study rights ceased and he was not able to continue or complete his studies. He, therefore, was required to cease studying the Certificate IV in Commercial Cookery course and was unable to commence the Diploma of Hospitality Management course or the Graduate Diploma of Management (Learning) course.

14. At the hearing the Applicant provided to the Tribunal an offer letter and international student agreement from Novus Education to the Applicant dated 17 May 2023, stating that the Applicant’s, ‘application to enrol with us has been accepted’.  The offer records that the Applicant has been accepted in the following package of courses:  (a) Certificate IV Kitchen Management; (b) Diploma of Hospitality Management; (c) Graduate Diploma of Management (Learning) course.  The Applicant says that if the decision of the Department is set aside, he intends to recommence studying the package of courses he has recently been accepted in.

15. The Department’s Decision states:

    The circumstances in which the ground for cancellation arose when the visa-holder’s enrolment in the AQF level 7 Bachelor of Business (Business Management)… was cancelled by the education provider on 25 February 2022, and he failed to subsequently enrol in another course at equivalent or higher level to the registered course in relation to which the Visa was originally granted, until the Department sent the visa-holder a NOICC on 3 June 2022.

    …

    . . .

    I consider that while the grounds for cancellation arose due to circumstances beyond the visa-holder’s control, the methods to remedy the situation were within his control and no action was taken to rectify the breach until after the Department had issued the visa-holder with a NOICC.

16. The Department was correct in finding that the cancellation of the Bachelor of Business course was beyond the Applicant’s control. This had a number of effects which the Department did not consider. As stated, the Applicant completed the Diploma of Business course on 1 April 2022.  Because the Applicant was originally enrolled in a Bachelor of Business (Business Management) course which was due to commence on 1 March 2021, and because he did not complete the Diploma of business course until 1 April 2022, it would be necessary for the Applicant to obtain either an extension of enrolment in the Bachelor of Business course, or to commence studying that course at the first intake after 1 April 2022.

17. The Applicant was not given notice that the education provider had ceased delivering the course.  This was beyond his control.  The Applicant says, and I accept, that the first time he became aware that the course was no longer available was upon receiving the notice of intention to consider cancellation in June 2022.  If he had become aware of the cancellation before then, he could have taken steps to enrol in the same course with another education provider or enrol in another course or course at the same level of the registered course in relation to which the Visa was granted. This is what he did. 

18. Upon receiving the notice of intention to consider cancellation, the Applicant enrolled in the package of courses beginning with the Certificate IV in Commercial Cookery course and ending in the Graduate Diploma of Management (Learning) course.  This package of courses is at the same level as, or a higher level than, the registered course in relation to which the Visa was granted.  For these reasons I do not consider that the Applicant has breached condition 8202(2)(b), attached to his student visa.  

19. As the Applicant has not failed to comply with the visa condition, the ground for cancellation, in section 116(1)(b) does not arise. It follows that the visa cannot be cancelled. Even if I am wrong on this, I consider that the visa should not 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 the matters in the Department’s Procedural Instruction, ‘General visa cancellation powers’.

20. In relation to the purpose of the visa holder’s travel to and stay in Australia, the Applicant  was born in Nepal.  He first arrived in Australia on 3 August 2019, to study the package of courses he was originally enrolled in.  The Applicant says that his intention was to complete those courses and return to his home country to pursue work.  Whilst in Australia the Applicant began working in the hospitality industry.  This led to a change of study intentions and vocational goal.  This ultimately led to the Applicant enrolling in the Certificate IV in commercial cookery course, the Diploma of Hospitality Management course and a Graduate Diploma of Management (Learning) course.  The evidence I have referred to above establishes that he is a genuine student.  He completed the general English course he was originally enrolled in and the Diploma of Business course.  His intention was to undertake the Bachelor of Business course.  I have set out above the reasons why he was not able to commence this study.  Upon learning that the Bachelor of Business course was no longer being provided, he enrolled in the package of cooking and hospitality and management learning courses.  He commenced studying his Certificate IV in commercial cookery course.  He has been unable to complete those studies because his study visa was cancelled and his current visa does not include study rights. The Applicant has subsequently been accepted in the courses of study I have referred to above.  He says that if the Department’s Decision is set aside and his student visa is, effectively, reinstated he intends to undertake the courses of study he has recently been accepted in.  He says that if or when he completes those courses, he will return to his home country to pursue work opportunities.  I accept this. 

21. The Applicant was granted a visa for the purpose of study.  He’ has demonstrated a willingness to pursue studies.  His study ambitions have been thwarted through no fault of his own.  He has demonstrated an ongoing intention to study.  Having regard to the evidence and submissions I am satisfied that there is a compelling need for the Applicant to remain in Australia to obtain an education for the purpose of improving his employment prospects in his home country.  I assess the factor in favour of the Applicant. 

22. In relation to the extent of compliance to visa conditions, I have set out above the Applicant’s study history. I have found that there were no grounds to cancel his visa.  I am satisfied the Applicant is a genuine student. Assuming the grounds for cancellation were established, there is no evidence or material indicating that the Applicant has not complied with any other conditions of the visa.  I find the Applicant has complied with all conditions of his visa.  I assess this factor in favour of the Applicant.

23. In relation to the degree of hardship that may be caused (financial, psychological, emotional or other hardship) by the cancellation of the visa, the Applicant was born in Nepal on 15 July 1985.  He is an only child.  His mother continues to live in Nepal and his father lives in Qatar, a short distance from his hometown.  The Applicant is married.  The Applicant says that he needs an education to improve his employment prospects in his home country or region.  He says that he needs to obtain an education.  The Applicant has paid tuition fees for the courses of study he has been enrolled in.  If the decision by the Department is upheld, it will cause the Applicant financial and emotional hardship.  The financial hardship is the loss of the investment in tuition fees he has made in his education in Australia.  The emotional or other hardship comprises the inability to complete his education in Australia and the obvious adverse effect that this will have on his and his family in Nepal’s future, particularly his wife. I assess these factors in favour of the Applicant.

24. In relation to circumstances in which the ground of cancellation arose, I have set this out above the circumstances in which the Applicant’s study visa was cancelled. The reason for the Applicant not being enrolled in a course of study was beyond his control. I assess this factor in favour of the Applicant. 

25. In relation to the Applicant’s past and present behaviour towards the Department, there is no information to indicate any specific matters of relevance regarding the Applicant’s behaviour towards the Department of Immigration.  There is no evidence the Applicant has been uncooperative with the Department of Immigration.  To the contrary, the evidence suggests otherwise.  He properly complied with and responded to the NOICC.  In my view the Applicant has acted responsibly, prudently and promptly and his conduct shows an ongoing intention to complete studies.  I assess this factor in favour of the Applicant.

26. In relation to whether there would be consequential cancellations, under section 140 of the Act, there is no independent visa holders. Accordingly, I assess this factor as neutral.

27. In relation to whether there are mandatory legal consequences, if the Tribunal affirms the decision to cancel the Applicant’s visa, the Applicant will be an unlawful non-citizen and may be liable for detention, under section 189, and removal, under section 198 of the Act, if he does not voluntarily depart from Australia. Additionally, the Applicant would be subject to section 48 of the Act which means that he will have limited options to apply for further visas in Australia. The Applicant will also incur a penalty in that he will be subject to a three-year exclusion period, where he may not be eligible to have any temporary visa application approved if he applies for a visa that requires public interest requirements, 401(3). The Tribunal accepts that there is hardship in the form of mandatory legal consequences if it affirms the decision to cancel the Applicant’s visa. However, this hardship is the intended consequence of the legislation and accordingly I assess it as neutral.

28. In relation to whether there are any international obligations that would be breached as a result of the cancellation, the circumstance of this case are not such that would engage Australia’s international obligations and the cancellation of the visa would not lead to a breach of Australia’s international obligations.  I therefore assess this factor as neutral. 

29. The visa that was granted to the Applicant is not a permanent visa.  Accordingly, this factor is not relevant. There are no other relevant matters in relation to the Tribunal’s consideration of whether the visa should be cancelled.

30. As set out above, I have found that the Applicant did not fail to comply with the visa condition and the ground for cancellation in section 116(1)(b) does not arise. However, if I am wrong and the Applicant did fail to comply with the condition of the visa justifying the Department’s cancellation, I would find that overall, considering the Applicant’s circumstances as a whole, the visa should not be cancelled.

    DECISION

31. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the Applicants subclass 500 (student) visa.

    Peter Newton SC

    
    

    Member