Kandel (Migration) - [2018] AATA 1383

Kandel (Migration) [2018] AATA 1383 (13 April 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Aashish Kandel
CASE NUMBER:  1618595
DIBP REFERENCE(S):  BCC2016/3020854
MEMBER:Mr S Norman
DATE:13 April 2018
PLACE OF DECISION:  Sydney
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 13 April 2018 at 11:55am

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Not enrolled in registered course – Substantial period of breach – Family’s loss of income – Natural disaster in home country – Medical condition – Continuation of studies
LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8 Condition 8202
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 31 October 2016 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant had breached condition 8202(2)(a) – enrolment. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 13 April 2018 to give evidence and present arguments.
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
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?
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).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.
The applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 5 November 2014. By Notice of Intention to Consider Cancellation (NOICC) of that visa dated 14 October 2016, the applicant was advised that information on the Provider Registration and International Student Management System (PRISMS), indicated he had not been enrolled in a registered course of study between 2 September 2015 to 14 October 2016. Further, it therefore appeared he had not met the requirement of condition 8202(2)(a); and that his visa may be cancelled under section 116(1)(b) of the Act.
By statement dated 28 October 2016 (in response to the NOICC), the applicant said he commenced a “Diploma leading to Bachelor in Business and information technology system”. He commenced the first semester and completed same in “February”. He then wished to transfer to Melbourne University. He “started at March intake and it was going good and all his expenses for University for himself was supported by his family”. However, due to inter alia the April 2015 earthquake in Nepal (discussed below), the applicant was unable to continue his studies in Australia. That being said, the applicant did not dispute (either in writing or at the Tribunal hearing) that there were grounds for cancelling the visa.
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
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. 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).
Regarding the purpose of the applicant’s travel to and stay in Australia, during the visa application process the applicant said (and after discussing same the Tribunal now accepts) he intended to travel to and stay in Australia for the purposes of study.
Regarding the extent of the applicant’s compliance with any conditions to which his visa was subject, the Tribunal notes the Student visa program provides opportunities for non-citizens to travel to and study in Australia. In order to be granted a Student visa, an applicant must maintain enrolment in a Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) registered course; with no more than a two month gap. Amongst other things, when he responded to the NOICC letter, the applicant provided evidence of “Conditional International Student Offer and Acceptance Agreement” from the Asia Pacific International College dated 25 October 2016. This related to a Bachelor of Business degree to commence on 3 November 2016.[1] The Tribunal notes the applicant only apparently made an attempt to re-engage in his studies after he had received the NOICC letter. Therefore while the applicant was enrolled in a registered course of study at the time of the Department decision, he was still in breach of condition 8202(2)(a) for some 14 months. The Tribunal believes this to be a substantial period to be in breach of his Student visa condition.
[1] Department – folio 14 (reverse side).
Regarding the circumstances in which the ground for cancellation arose, the applicant said “unfortunately he got problems in his family and country. His country Nepal faced a devastating earthquake on 15 April 2015 which was biggest natural disaster and many were victimised, one of the family who went through the trauma was his” (the applicant’s father passed away when the applicant was two years old). The applicant then referred to his grandfather being killed (which he explained was a “tragic moment for him [as his grandfather] was his in inspirer, motivator and booster”). In the earthquake the family property was also badly damaged (at hearing, he said one business property was destroyed and the second was badly damaged but now repaired). He said this was his family’s principal source of income (though his mother held a ‘well paying’ position in the Nepal Water Supply Department). The applicant had then become “frustrated and depressed and couldn’t enrol for July 2015”. He said the “bank [in Nepal was unable] to send him money as his house was destroyed upon which bank had provided the previous education loan”. The applicant then was “not able to cope …with the situation and was worried about his career as his family was financially unstable and he couldn’t focus on further career plans”.
The applicant said he was losing hope; he attempted to “catch up next attempt 2016 but his mother was not able to assist him”; he then “started getting shortage of money for his daily needs and accommodation”; he then “stopped working because his boss kicked him from the job because he couldn’t focus on the thing which they used to say to him to complete it then he was totally depressed and losing his grip”; he then commenced to live with friends who encouraged him; he then decided to enrol with a new education provider in Sydney but he missed the intakes in 2016 as his mother was still under financial pressure; his mother wanted him to continue to study. The country information stated:
Economic Overview
2.9 … The [7.9 magnitude] earthquake of April 2015 and the subsequent aftershocks had a negative impact on the economy.
and:
[2] “Nepal’s population is 28.9 million”; DFAT Country Information Report, Nepal, 21 April 2016, [2.6].
[3] DFAT Country Information Report, Nepal, 21 April 2016.
2,5 … killed an estimated 8,891[2] people and injured 22,302.[3]
After discussing same, the Tribunal accepts the applicant’s family suffered due to the Nepal earthquake. I am also satisfied that his capacity to continue to study was adversely impacted by the family’s loss of income at that time. To the Tribunal the applicant had also provided evidence of seeking medical assistance in Australia for his “chronic eczema”.[4] He had said his insurance (in Australia) only “covers around 30% total cost”. He was none-the-less able to seek medical assistance for his eczema but not for any stress or depression he may have suffered. He also said he first suffered from eczema in late 2015; but that since early to mid-2016, he had been able to work fairly consistently. Be that as it may, the Tribunal does accept he found his eczema debilitating.
[4] Tribunal – from folio 32.
Regarding the degree of hardship the applicant or his family may suffer if his visa is cancelled, the applicant said if his visa is cancelled the hardship that would be caused to him and his family would be “immense”. At hearing, he said he wished to support his family and he would have to ‘start again’ should he return to Nepal. He also said his family had now recovered from the “natural disaster” (the April 2015 earthquake which had killed his grandfather, damaged his family business property and caused them to be unable to financially support him in Australia). He said “sometimes he was depressed a lot and even spent some time without eating food and slept at friends’ houses for not having any place to live”. Now everything is better and he is feeling better and wants to focus on his career. The Tribunal accepts the applicant (and his family) was adversely impacted by the Nepal earthquake.
Next, the Tribunal notes that if the applicant’s visa is cancelled he would become an unlawful non-citizen and liable to detention under s.189 and removal under s.198 of the Act. However, given inter alia he is prepared to return to Nepal for medical treatment, I am not satisfied the applicant would be subject to indefinite detention. Further, he may apply for a Bridging visa in order to be allowed to remain in the community to finalise his affairs prior to departing. The Tribunal also notes that if the applicant’s visa is cancelled he would be subject to s.48 of the Act and he would have limited options to apply for further visas in Australia. He would also be subject to PIC 4013; meaning he could not be granted a temporary visa for three years from the date of cancellation.
The Tribunal has not seen evidence the applicant has been uncooperative with either the Department or the Tribunal. The Tribunal has not seen evidence that there are any persons in Australia whose visas would or may be cancelled if the applicant visa is cancelled. Based on the evidence before the Tribunal, I am not satisfied that Australia’s international obligations would or may be breached if the applicant’s visa is cancelled.
However, at hearing the applicant provided evidence from the Asia Pacific International College dated 13 April 2018. That was an Interim Academic Record for Bachelor of Business (semester 3-2016); and Bachelor of Business Information System (semester 1-2017 to semester 1-2018). The applicant had passed 7 out of 13 subjects. Of the 5 subjects he failed, three were noted as ‘Absent fail’, and two were in the second semester of 2017. When discussed, the applicant said he had suffered badly from eczema (medical evidence lodged). He also then, and in some detail, explained the medical treatment regime he was presently engaged in (since November/December 2017).
After having considered the evidence, the Tribunal accepts the applicant suffered from eczema and he was now being effectively treated for same. The Tribunal is also satisfied that the applicant has continued with his studies at the Asia Pacific International College from Semester 3, 2016, to Semester 1, 2018. Given this, the Tribunal is satisfied the decision to cancel the applicant’s Student visa should be set aside.
Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.
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.
Mr S Norman
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.