Khendo Sherpa (Migration) - [2024] AATA 3393

Khendo Sherpa (Migration) [2024] AATA 3393 (31 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Dawa Khendo Sherpa
REPRESENTATIVE:  Mr Hem Raj Bhatta (MARN: 1466471)
CASE NUMBER:  2311032
HOME AFFAIRS REFERENCE(S):          BCC2023/625326
MEMBER:Christine Kannis
DATE:31 August 2024
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 31 August 2024 at 12:45pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – non-compliance with condition of visa – not enrolled in registered full-time course – discretion to cancel visa – successfully completed diploma – advanced diploma course merged with diploma – could not enrol in bachelor course after failing to achieve proficient English score – death and illness in family and applicant’s mental health – husband’s visa refused – significant period of non-enrolment, and ongoing casual employment – no approach to department – new enrolment after receiving department’s notice of intention – currently studying but not enrolled because holding bridging visa – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), 359AA
Migration Regulations 1994 (Cth), r 1.03, Schedule 8, condition 8202(2)(a)
Education Services for Overseas Students Act 2000 (Cth), s 19(3)
CASES
Liew v MIBP [2016] FCA 172
Liu v MIMIA [2003] FCA 1170
Plaintiff M64/2015 v MIBP [2015] HCA 50
1607917 (Migration) [2017] AATA 950
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 21 July 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).
The delegate cancelled the visa on the basis that the applicant failed to comply with a condition of her visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.
The applicant appeared before the Tribunal by MS Teams on 19 August 2024 to give evidence and present arguments.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed OR 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 (Cth) (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?
On 29 January 2021, the applicant was granted a Subclass 500 (Student) visa with condition 8202 attached.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Khendo Sherpa (Migration)

Details

AGLC: Khendo Sherpa (Migration) [2024] AATA 3393
Case: [2024] AATA 3393
Decision Date: 31 August 2024

CaseChat Overview and Summary

This matter concerned the review of a decision to cancel the Student (Temporary) (Class TU) visa, subclass 500, held by Khendo Sherpa. The applicant's visa was cancelled due to non-compliance with visa condition 8202(2)(a), specifically failing to maintain enrolment in a registered full-time course from 11 March 2021 to 8 June 2023. The review was heard by Christine Kannis, a Member of the Tribunal.

The Tribunal was required to determine whether the ground for cancellation under s 116(1)(b) of the Migration Act 1958 (Cth) existed, and if so, whether to exercise its discretion to cancel the visa. The applicant had provided extensive information regarding personal circumstances, including family tragedies, mental health issues, difficulties with English proficiency tests preventing enrolment in a Bachelor of Nursing course, and her husband's visa refusal. The Tribunal also considered the applicant's subsequent enrolment in a Diploma of Nursing, the merger of courses, her eventual enrolment in a Bachelor of Early Childhood Education, and her employment history.

In its reasoning, the Tribunal acknowledged the significant personal hardships faced by the applicant, including family illness, mental health struggles, and the impact of the COVID-19 pandemic. It also noted the applicant's efforts to re-enrol in a course after receiving the notice of intention to cancel. However, the Tribunal found that the ground for cancellation under s 116(1)(b) was established due to the prolonged period of non-enrolment. Despite considering the mitigating circumstances, the Tribunal concluded that, on balance, the visa should be cancelled, finding that the ground for cancellation existed and that the discretion to cancel should be exercised.

The Tribunal affirmed the decision to cancel the applicant's Class TU visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Tribunal recognises that the cancellation of the visa is a significant matter. However, on balance, and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.DECISION The Tribunal affirms the decision to cancel the applicant’s Class TU visa.Christine KannisMemberATTACHMENTMigration Regulations 1994…Schedule 88202(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.

Ratio Decidendi

Legal Principle Established

For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(b) exists. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa.Consideration of the discretion to cancel the visa 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 his representative, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, as set out below. Utilising the s 359AA of the Act procedure, the Tribunal put the following information to the applicant for her comment or response:On 6 June 2023, the Department of Home Affairs Character and Cancellation Branch sent the applicant an email regarding verification of her contact details and she responded on 6 June 2023. The applicant agreed that she had been contacted on 6 June 2023 by the Department of Home Affairs Character and Cancellation Branch. On 4 July 2023, the Department issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because she had ceased to be enrolled in a registered course from 11 March 2021 to 8 June 2023 and had therefore failed to comply with condition 8202(2)(a) of her visa. On 10 July 2023, the applicant responded to the NOICC via her migration agent and provided the following information: The applicant went to Nepal on 22 October 2018 and was married on 24 October 2018. The applicant successfully completed a Diploma of Nursing. The applicant obtained a CoE for Advanced Diploma of Nursing for April 2019 intake however, the institution merged both programs together with Diploma of Nursing due to its internal issues of registration. The applicant obtained a conditional CoE for a Bachelor of Nursing with the course start date of February 2021 conditional on her obtaining the Proficient English score in IELTS. She failed multiple tests to satisfy the condition. Not achieving the required English score in PTE or IELTS was beyond her control, and she could not enrol in the Bachelor program. The applicant’s husband applied for a Subclass 500 as her dependent but his visa was refused on 21 January 2021 and this which fuelled her distress. The relationship was not going well because of the tension and COVID-19 lockdown and was on the verge of breaking down and as a result she could not make the right decision and left her academic journey in limbo. The applicant had a family tragedy when her grandmother died in February 2022. This pushed her to further darkness where she could not think properly. The applicant’s mother was diagnosed with severe nerve problems which require ongoing treatment and this added additional emotional stress. The applicant visited a general practitioner in Australia a few times for resolutions on her mental strain and is now on medication and under a stress management plan. She was recommended for psychotherapy In the meantime, COVID-19 made her life stop and loneliness and social distance led her to unhealthy habits which raised her level of stress, impeded sleep, and anxiety. The incidents one after another full of family tragedy and mental pressure left her mind tedious and could not make a right decision until end of May 2023 . The applicant finished a 4 week General English course on 2 July 2023 and is currently enrolled in a Bachelor of Early Childhood Education (Birth to 5). She chose a Bachelor of Early Childhood Education because she is passionate about serving her community. Initially, she wanted to serve in the health sector and since that dream could not be achieved, she decided on this course which is similar to initial dream. The applicant wanted to study a nursing degree in Australia and that was the reason she left her family and friends in Nepal. She planned to move to a higher level of a Bachelor of Nursing and therefore applied in early 2020 and obtained a conditional offer and CoE. However she could not achieve the required English test score. She became depressed due to breaking her academic career plan. She could not decide what is right and wrong and remained without being enrolled in any other registered course from 11 March 2021 to 5 June 2023. Before she obtained notification from the Department, she realized her mistake and went back to study, giving up her dream of being a registered nurse to become an Early Childhood Teacher. The applicant’s parents have spent a significant sum of money on her study and cannot afford to again spend money on her higher education in Nepal if she fails to complete her higher education in Australia. The mental and financial hardship for herself and her parents are inevitable if the visa is cancelled. The applicant came to Australia at 20 years old. It is not common for a girl of her age in Nepal to leave family and friends and start an independent international student life living far away. It is likely in these conditions for students like her to fall into pressure of maintaining family tragedy, part time work pressure, burden for scoring required English, relationship breakdown, abnormality due to effect of COVID 19, mother illness and everyday routine in a completely new place at such young age. Currently, the applicant is vulnerable to depression and anxiety and may not be able to cope with the legal consequences (such as handling of the MRT appeal and Federal Circuit court application) if her visa is cancelled. Despite having multiple hardships, the applicant contributed to Australian society through her employment in health and hospitality during the COVID. The applicant belongs to Nepal. Her parents have dedicated themselves to providing support in her study in Australia and it is matter of pride to them and the Nepali society to have her as a graduate in Higher Education from Australia. The applicant comes from a well-respected family. Her mother runs family and household chores and her father is a businessman running a lucrative garment business in India.. Being an elderly daughter of her parents, the applicant has a responsibility of having to look after her parents in later stages of their life and she intends to return to her country once she finishes her studies in Australia. As Nepal is progressing in the field of early childhood and pre-school, the applicant will have a bright future when she returns after she completes her current study. There are reputable institutions where she can secure good employment as her Australian qualifications are highly valued in Nepal. With a few years of experience in the education and childcare sector of Nepal, she will have an option to do her higher education at Masters level either in Nepal or overseas to strengthen her skills and knowledge and that will be a great asset for a country itself like Nepal. It will have an adverse effect on her career if her visa is canceled and if she is deprived of an opportunity to complete her enrolled studies in Australia.