Karki (Migration)

[2020] AATA 2621

Karki (Migration) [2020] AATA 2621 (5 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Pritika Karki

CASE NUMBER:  1922738

HOME AFFAIRS REFERENCE(S):          BCC2019/2604501

MEMBER:Amanda Upton

DATE:5 May 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 500 (Student) visa.

Statement made on 05 May 2020 at 12:07pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 visa – not being enrolled in a registered course of study – genuine desire to continue to study – distress about the health of her mother – decision under review set aside

LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994 (Cth), Schedule 8

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 14 August 2019 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 (the Act).

2. The delegate cancelled the visa on the basis that the applicant had failed to be enrolled in a registered course of study from 25 July 2018. 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 20 December 2019 to give evidence and present arguments. The Tribunal also received oral evidence from her husband Aashish Shresta although very brief.

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.

9. The applicant is a Nepalese national. She was 19 years old when she arrived in Australia and is currently 21 years old.

10. The applicant was granted visa on 24 November 2016 to study a Bachelor of Integrated Media. She completed 3 semesters of this course before failing a number of subjects that affected her enrolment status. The applicant agrees that she essentially has not been enrolled in a registered course of study from 25 July 2018. The applicant did obtain a CoE for a Diploma of Business for the period of 19 August 2019 to 16 August 2020 however withdrew the enrolment after 1-2 weeks as she received the Notice of Intention to Consider Cancellation of her visa.

11. 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

12. 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’.

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

13. The applicant came to Australia for the sole purpose of studying and this remains her reason for wanting to stay in Australia. The Tribunal notes that the applicant is now newly married and her husband is a Nepalese national in Australia on a study visa. He indicated to the Tribunal that his intention is to remain in Australia and continue to study. The Tribunal considers that the purpose of the applicant remaining in Australia is likely also to be to stay with her husband.

14. The Tribunal does not consider that this weighs significantly against the applicant as the applicant’s reason for remaining in Australia remains to be for studying and specifically to obtain her Bachelor’s degree. She has indicated an intention to complete her Bachelor of Accounting and has provided to the Tribunal, subsequent to the hearing, material showing her attempts to enrol in a course.

    The extent of compliance with visa conditions

15. The applicant has remained without enrolment in a registered course of study for a period of approximately 18 months. The Tribunal considers this to be a significant period of non-compliance with the visa condition. This is a matter that weighs significantly against the applicant.

    Circumstances in which the ground of cancellation arose

16. The applicant was initially enrolled in a Bachelor of Interactive Media. She completed 2 semesters however in her 3^rd semester she failed subjects as she had gone back to Nepal to see her mother due to her being unwell with a heart condition. The applicant travelled back to Nepal to see her in May and October 2018. She attempted to return to her study however had missed a lot of the course and was able not able pass her subjects.

17. After being unable to complete the Bachelor of Interactive Media, the applicant enrolled in a Bachelor of Accounting as she thought that she may be able to successfully complete the course however the enrolment was cancelled before she commenced apparently due to the applicant being unable to provide the required documentation on time.

18. It was at this time that the applicant went back to Nepal for 1 ½ months in October 2018. She told the Tribunal that it was at this time that she felt upset about her situation and the situation with her mother and so took the break back in Nepal.

19. On her return in November 2018 the applicant attempted to apply for further courses but due to leaving it too late she missed the enrolments for the next semester commencing in the new year of 2019.

20. The applicant acknowledged that she knew that she needed to be studying for her visa to be valid but had difficulty knowing what to do due to distress about the health of her mother.

21. The Tribunal considers that the applicant could have done a number of things to ensure that she complied with the conditions of her visa, including validly changing courses or asking for a deferral from her studies to enable her to deal with the distress over her mother. The Tribunal considers that there were no matters that were out of the control of the applicant that resulted in her visa cancellation.

22. The circumstances under which the cancellation arises weigh heavily in favour of cancelling the visa, however the Tribunal takes into account the applicant’s age and the impact that her youth would have had on her ability to deal with her circumstances particularly her mother’s health. Her mother has a heart condition and requires a pacemaker and regular travel to India for treatment. The Tribunal accepts that her condition is serious.

    Degree of hardship that may be caused

23. The applicant told the Tribunal that if her visa was to be cancelled her parents would be very disappointed with her. She would feel bad about this as her parents and grandparents have treated her like a son whereas culturally girls are treated quite differently to sons. She was concerned about the impact it would have on her younger (by 10 years) sister as she sees her as a role model.

24. The applicant is currently in Australia with her husband. At the time of the hearing they had been married for approximately 2-3 months and living together for approximately 2 years. They have no children. The applicant’s husband is a student and it is his intention to continue to study in Australia at least in the short term.

25. She indicated during the hearing that there would not be a financial hardship as her father pays her fees and has the means to do so, however since the hearing, the applicant has provided the Tribunal with information indicating that her father’s financial circumstances have changed as he is now looking after the applicant’s mother who suffers from a heart condition.

26. The applicant is concerned about the stress a visa cancellation would cause her mother as she would become a greater financial burden for them if she was to be back in Nepal rather than staying with her husband.

27. The applicant and her husband provide emotional support for each other and she expressed concern as to the impact it would have on him being able to complete his studies. The Tribunal accepts that if the applicant was to have her visa cancelled then this would cause significant emotional distress to both the applicant and her husband and possibly her parents.

28. The Tribunal takes into account the impact a visa cancellation would have on the applicant in that she may find it difficult applying for other visas that would either enable her to remain with her husband or visit him whilst he finishes his studies.

29. She expressed genuine regret at the position that she had found herself in and appeared to be  genuine in her desire to continue to study

30. The Tribunal notes the applicant’s age. She was very young when arriving in Australia and remains to be very young. The Tribunal takes this into account both in relation to the hardship that a cancellation may cause and in an assessment of the circumstances under which the cancellation arose.

31. The Tribunal; gives significant weight to this factor in favour of not cancelling the visa.

    Past and present conduct of the visa holder toward the Department

32. There is nothing before the Tribunal to indicate any adverse conduct by the applicant to the Department and as such the Tribunal gives this some weight in favour of the applicant.

    Whether there would be consequential cancellations under s.140

33. There are no other people associated with the visa and as such the Tribunal affords this factor no consideration.

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

34. If the visa is cancelled, the applicant will become a non-lawful citizen and her ability to apply for other visas would be limited. Whilst unlikely in this instance, she could be detained until she made arrangements to leave the country.

35. The applicant would also be section 48 barred and may not meet the requirement for certain visas for three years.

36. The Tribunal sees these as natural consequences of the cancellation of a visa. The applicant retains her passport and is able to return to Nepal. The applicant raised no reason that she would be unable to return to Nepal and informed the Tribunal that he would do so if her visa was cancelled.

37. The Tribunal gives this factor minimal weight in favour of the applicant.

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

38. The applicant has provided no reasons for being unable to return to Nepal as such the Tribunal affords this factor no weight

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

    DECISION

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

    Amanda Upton
    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.