Malla (Migration)

[2019] AATA 6907

Malla (Migration) [2019] AATA 6907 (22 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Deepika Malla

Mr Nabin Giri

Master Nicholas Devu Giri

CASE NUMBER:  1712069

HOME AFFAIRS REFERENCE(S):          BCC2017/736620

MEMBER:Meredith Jackson

DATE:22 July 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 22 July 2019 at 9:17am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – previous student visa cancelled for non-enrolment – three-year exclusion period – discretion to waive criterion – difficult pregnancy and birth, and parenting alone – return to study – members of family unit – under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 500.217, 500.317; Schedule 4, PIC 4013

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the on to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2.    The applicants applied for the visas on 25 February2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (the applicant) applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visas on the basis that the applicant did not satisfy the requirements of cl.500.217 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant met Public Interest Criterion (PIC) 4013 and therefore, did not meet clause 500.217.

4.    The applicants appeared before the Tribunal on 10 July 2019 to give evidence and present arguments. The Tribunal also received oral evidence from The Tribunal hearing was conducted with the assistance of an interpreter in the  and English languages.

5.    The applicants were assisted in relation to the review by their registered migration agent.

6.    For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

7. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant meets PIC 4013 for the purposes of cl.500.217.

8. Part 500.2 of the Migration Regulations sets out the criteria relevant to the applicant and includes the following:

500.217

(1) The applicant satisfies Public Interest Criterion 4001, 4002, 4003, 4004, 4010, 4013, 4014, 4020 and 4021.

4013

(1) If the applicant is affected by a risk factor mentioned in subclause (1A) (2) (2A) (3) (4) (5)

(a) the application is made more than 3 years after cancellation of the visa, or temporary entry permit or determination of the Minister, as the case may be, referred to in the subclause that relates to the applicant; or

(b) the Minster is satisfied that in the particular case:

(i) compelling circumstances affecting the interests of Australia; or

(ii) compelling or compassionate circumstances that affect the interests of an Australian citizen, permanent resident or eligible New Zealand citizen;

justify the granting of the visa within 3 years after the cancellation or determination.

9.    Subclause 4013(2) states:

(2) A person is affected by a risk factor if a visa previously held by the person was cancelled under Section 116 or 128 of the Act;

(a) because the person was found by Immigration to have worked without authority; or

(b) if the visa was of a subclass specified in Part 2 of this Schedule – because the person did not comply with a condition specified in that Part in relation to that subclass; or

(c) if the visa was a subclass 773 (Border) visa and, at the time of grant of the visa, the person was apparently eligible for a substantive visa of a subclass specified in Part 2 of this Schedule – because the person did not comply with a condition specified in that part in relation to that subclass of substantive visa; or

(ca) because the person held a student visa and the Minister was satisfied that a ground mentioned in paragraph 116(1)(fa) of the Act applied to the person; or

(d) because the Minister was satisfied that a ground prescribed by paragraph 2.43(1)(ea), (i), (ia), (j), (k), (ka), (kb), (m) or (o) applied to the person.

Case summary

1. The applicant, Deepika Malla, is a 27 year old citizen of Nepal who first arrived in Australia on 4 July 2014 to study in the higher education sector. She gave birth to a young child on 13 February 2016. Her student visa was cancelled on 6 March 2017 under s.116(1)(b) of the Act. She was found to have breached visa condition 8202 which requires that she maintain enrolment in a registered course. Prior to the cancellation, on 23 February 2017, the applicant applied for a new student visa, which was refused by the delegate because she was affected by a risk factor arising from the cancellation under PIC 4013 which placed a three year exclusion period on applying for a new visa. The delegate found no grounds for a waiver of PIC 4013.

Written submissions

1. Prior to the hearing, the applicant submitted to the Tribunal documents including:

   a.The delegate’s decision, which includes the reasons for the refusal under PIC 4013;

   b.Personal submissions concerning the circumstances leading to the cancellation, including information about a stressful birth of her child, post-natal difficulties for which she received treatment; information about how the birth and the ensuing health issues had affected her and disrupted her studies;

   c.Information regarding medical treatments relating to the birth and treatment by a psychologist for post-natal issues;

   d.A medical certificate regarding her pregnancy;

   e.Letters and transcripts recording her academic achievements; submissions concerning her current and intended studies in early childhood and care; and her intention to use her studies to open a child and day care centre in Nepal.

The hearing

1. At the hearing, the Tribunal noted the nature of some of the submissions, and questioned the applicant about whether she was clear about purpose of the review. The Tribunal outlined that the Tribunal was reviewing the visa refusal decision, not the cancellation decision, in particular whether evidence of compelling circumstances affecting the interests of Australia, or of compassionate or compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, exist that would justify a waiver being applied under PIC 4013 (PIC 4013 waiver). The Tribunal gave the applicant’s migration agent an opportunity to further explain the review process. The applicant stated she understood the difference between the two decisions. The agent said while some of the submissions were relevant to the cancellation decision they had been provided to the Tribunal for information.

2. The Tribunal sought from the applicant evidence of compelling circumstances affecting the interests of Australia, or of compassionate or compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, that would justify a PIC 4013 waiver. The Tribunal asked the applicant to clarify the immigration status of her young child, a secondary applicant. The applicant confirmed that the child held a bridging visa and was not an Australian citizen or permanent resident. The Tribunal asked if there were any other circumstances that might affect the interests of Australia or affect a citizen of Australia or New Zealand citizen in her case. The applicant confirmed there were no such circumstances.

3. The Tribunal asked if the applicant understood that she had made an application for the visa within three years of the cancellation decision, and that in her case, the exclusion period specified under PIC 4013(2) of three years does not conclude until February 2020. The applicant said she understood the timing issue.

Consideration

1. The Tribunal has carefully considered the applicant’s submissions and her circumstances, and in particular noted her submission that her visa cancellation came about because of difficulties she experienced in the birth and infancy of her son and more generally, with parenting responsibilities. The Tribunal accepts that as her husband was away working after the birth, she was obliged to cope with the infant largely on her own, and this will have been a stressful experience.  The Tribunal notes this is supported by information provided by the applicant about the medical and other treatment she received during and following the child’s birth.  The Tribunal concludes that the applicant suffered significantly through the birth of her child and through coping with parenting without family support but this consideration, alone, does not warrant a PIC 4013 waiver.

2. The Tribunal has also considered the applicant’s submissions in relation to her recovery, and considered her academic completions since arriving in Australia in 2013, which include the award of a Diploma of Leadership and Management, an Advanced Diploma of Leadership and Management and a Certificate IV in Business. The Tribunal notes the applicant is currently studying on a bridging visa and is enrolled in a Certificate III in Early Childhood Education and Care which she will complete on 9 August 2019. The Tribunal notes she is enrolled to study a further course, and concludes that despite the issues with the birth and infancy of her child, she is achieving academically and plans to go on doing so.

3. The Tribunal has considered the applicant’s response to its request to provide evidence of compelling circumstances affecting the interests of Australia, or of compassionate or compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, that would justify a PIC 4013 waiver. The Tribunal concludes the applicant has made no submissions to support consideration in relation to the PIC 4013 waiver.

4. The Tribunal has looked at the entirety of the evidence in relation to the applicant’s circumstances, including her academic performance, and considered whether it amounts to compelling circumstances affecting the interests of Australia, or of compassionate or compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, that would justify a PIC 4013 waiver. It has found no evidence before it that would be a reason to apply the waiver. 

5. Accordingly, the Tribunal does not have before it evidence that the applicant meets PIC 4013.

6. The Tribunal is not satisfied, therefore, that the applicant meets cl.500.217.

7. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

Secondary applicants

1. The entitlement of the secondary applicants, Mr Nabin Giri and Master Nicholas Devu Giri, to visas is initially dependent on whether the primary applicant is the holder of a visa, having satisfied the primary criteria for that visa, and then on whether they, as the secondary applicants, meet any additional visa criteria applicable (cl.500.317). As the primary applicant does not satisfy the criteria for the grant of a Subclass 500 (Student) visa (cl.500.217), the secondary applicants cannot satisfy cl.500.317.

DECISION

1. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.