Manandhar (Migration)

[2019] AATA 1635

Manandhar (Migration) [2019] AATA 1635 (23 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Saraswoti Manandhar

CASE NUMBER:  1703052

HOME AFFAIRS REFERENCE:                BCC2017/241560

MEMBERS:Lilly Mojsin (Presiding)

Peter Newton

DATE:23 May 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 23 May 2019 at 11:10am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – completed studies in accounting – early completion of course – new desire to study cookery – father’s health issues – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 21 February 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the ground that the applicant had not been enrolled in a registered course since 19 July 2016 and had thereby breached condition 8202(2) (a) of Schedule 8 to the Migration Regulations 1994 (the Regulations). Condition 8202(2)(a) provides that a visa holder meets the requirements of that subclause if the visa holder is enrolled in a registered course. The issue in the present review 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 28 March 2019 and gave evidence and presented arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

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 affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present review is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to 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 review, 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 review, the applicant’s visa was cancelled on the basis that the applicant was not enrolled in a registered course.

9.    The evidence establishes that on the dates shown below the applicant was granted the following student visas:

a.on 19 March 2008 a Student (Temporary) (Class TU) Higher Education Sector (subclass 572) visa;

b.on 7 April 2010 a Student (Temporary) (Class TU) Higher Education Sector (subclass 572) visa;

c.on 19 July 2013 a Student (Temporary) (Class TU) Higher Education Sector (subclass 573); 

d.on 7 February 2014 a Student (Temporary) (Class TU) Higher Education Sector (subclass 572) visa;

e.On 3 November 2014 a Student (Temporary) (Class TU) Higher Education Sector (subclass 573) visa which was valid until 15 March 2017.   

10.      The evidence establishes that during the period from or about 21 April 2008 to 8 July 2016, the applicant completed a series of courses.  The final course the applicant completed was a Master of Professional Accounting at the Kings Own Institute on 8 July 2016.

11. On 2 February 2017 the then Department of Immigration and Border Protection (Department) sent to the applicant a Notice of Intention to Consider Cancellation of Student (Temporary) (Class TU) Higher Education Sector (subclass 573) visa (granted 3 November 2014) under section 116 of the Act and invited the applicant to respond in writing (NOICC). The NOICC states:

“Specifically, it appears that you have not complied with paragraph 8202(2)(a) of condition 8202.

Condition 8202(2)(a) states the visa holder meets the requirements if the visa holder is enrolled in a registered course.  Based on evidence available to me in the Provider Registration and International Student Management System (PRISMS), it appears that you have not been enrolled in a registered course of study since 19 July 2016.  Therefore, it appears you do not meet the requirements of condition 8202(2)(a).”

12.      On 3 February 2017 an application was made for a Temporary Work (Skilled) (subclass 457) visa and on 3 February 2017 the Department granted a bridging visa (class WA) to the applicant to allow the applicant to remain in  Australia during the processing of the application for a Temporary Work (Skilled) (subclass 457) visa.

13.      On 8 February 2017 the Department granted the applicant an extension of time, in which to provide a written response to the NOICC, until 16 February 2017.

14.      On 16 February 2017 the applicant, through her migration agent, sent to the Department the applicant’s written submissions dated 16 February 2017 together with other documents.

15. On 21 February 2017 the Department sent to the applicant notice of a decision dated 21 February 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Act.

16.      In the decision, the delegate noted that in her written response, received on 16 February 2017, the applicant did not dispute that there were grounds for cancellation.  The delegate found that:

“Specifically, SARASWOTI MANANDHAR has not complied with paragraph 8202(2)(a) of condition 8202.

Condition 8202(2)(a) states the visa holder meets the requirements if the visa holder is enrolled in a registered course.  Based on evidence available to me in the Provider Registration and International Student Management System (PRISMS), SARASWOTI MANANDHAR has not been enrolled in a registered course of study since 19 July 2016.

Based on the information before me, I am satisfied that there is a ground for cancellation of SARASWOTI MANANDHAR’s visa under paragraph(s) s116(1)(b) breach of condition – 8202 of the Act.”

17. The delegate considered the relevant legislation contained in the Act and the Regulations, information contained in the Department’s Procedures Advice Manual 3, the documents and information provided by the applicant and other relevant information held on the departmental files and then made the following decision:

“After careful consideration of all information before me, I am satisfied there is a ground for cancelling SARASWOTI MANANDHAR’s Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa and I am satisfied the grounds for cancelling the visa outweigh the grounds for not cancelling.

I have decided to cancel the visa.”

Consideration of the discretion to cancel the visa

18. At the hearing, the applicant did not dispute that she had not been enrolled in a registered course of study since 19 July 2016. Accordingly, the applicant has not complied with condition 8202(2). On this basis the Tribunal finds that there is a ground for cancellation of the applicant’s visa under s116(1)(b) of the Act.

19. The Tribunal must therefore 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’.

20.      For the following reasons, the Tribunal considers that the grounds for cancelling the visa outweigh the grounds for not cancelling the visa:

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

21.      The applicant’s first student visa was granted on 19 March 2008 and the applicant arrived in Australia on 18 April 2008.  She has since been issued with further student visas.  The applicant says her purpose of travelling to and staying in Australia was for study. On 8 July 2016, the applicant completed a Master of Professional Accounting.

22.      In her written submissions dated 16 February 2017, the applicant says:

·The purpose of your travel to and stay in Australia

o   The purpose of her travel to and stay in Australia has always been to study further in Australia and return to her home country with qualifications globally recognised that would make her more employable in a high paying salary jobs in her home country.”

. . .

·The degree of hardship that may be caused to you and any family members if the visa is cancelled

o   If her visa is cancelled that was (sic) have a devastating affect her (sic) life and her parent and guardians.

o   She would be highly distressed, de motivated, helpless and be looked upon as a failure in her life by her conservative society back home as well as her peers and family.

o   On 3 February 2017 the applicant applied for a 457 visa.  She has been offered a full time position in the role of an Accountant by a reputed and well established company in Sydney.  She will have to lose that opportunity if her current student visa was cancelled as that may impact her 457 visa as well.

o   This would be a big setback for her career, her future and her parent and guardians back home.

o   This could give heartache to her family.

o   She has worked very hard to complete her account (sic) (master level) degree in Australia and then has worked hard to prepare herself to be able to get the job and sponsorship offered.

o   Her father has spent substantial amount of money on her studies in Australia and due to which she has finally rewarded with a full time professional job offer in an accounting firm and has been given the opportunity to be sponsored as well.  This will be a big hardship for her family and her.

o   She was preparing herself to be on a 457 visa, earn and save money, reward her father with some financial support during his old age time when his health is deteriorating and return to her home country with a solid few years of accounting work experience under her belief.

o   The Australian accounting work experience in a real world would put her ahead of lot (sic) of other candidates in the job market in her home country and could help her to move up the ladder quickly.

o   It was (sic) the time now for her to start being rewarded for all her studies she has done in the past and reward her parent, guardians and family with satisfaction, financial support and happiness.”

23.      At the hearing, the Tribunal received a Death Registration Certificate recording that the applicant’s father died on 30 July 2017.

24.      At the hearing, the applicant accepted that she was sufficiently qualified to work as an accountant.  However, the applicant indicated things had changed and she now wants to study a course in Cookery. The applicant has been working as a catering assistant since 25 August 2014 and she indicated that her new desire to study cookery was acquired from her work experience as a catering assistant.  She gave evidence about her work experience through which she says she acquired her interest in cookery.  The applicant’s written submissions dated 16 February 2017 do not mention that the applicant wishes to obtain a new qualification in cookery.

25.      At the hearing, the applicant says that if she is sent back to Nepal she will be considered “not successful in the pursuit of my dreams” and she would like to return to Nepal with something new.

26.      The student visas granted to the applicant were temporary and issued for the purpose of study.  The applicant has studied for just over 8 years and obtained a Master of Professional Accounting.  The Tribunal places no weight on her evidence and submissions to the effect that if she now returns to Nepal she will not be considered successful and that if her visa is cancelled that will have a devastating effect on her, her parents and guardians.  As the applicant states in her written submissions, the “applicant successfully completed her intended courses.”  Whilst, sadly, her father has died, she has justified the “substantial amount of money” he spent on her studies.  She is now qualified to return to Nepal and practice as an accountant.

27.      During the hearing, the applicant accepted that there was no compelling need for her to remain in Australia. 

28.      Based on the evidence, the Tribunal is not satisfied that if the applicant is granted a visa to pursue a course of study in cookery in Australia and obtains a qualification in cookery, that such a qualification is likely to enhance her career prospects. The Tribunal does not find convincing the applicant’s evidence, given at the hearing, to the effect that she acquired her interest in cookery from her work experience as a catering assistant and the Tribunal places little weight on this evidence. Additionally, having regard to the applicant’s study history and achievements in Australia, her written submissions dated 16 February 2017 to the effect that she wishes to pursue work using her Master of Professional Accounting qualifications and her application for a temporary work visa made on 3 February 2017, the Tribunal is not satisfied that the applicant’s stated desire to remain in Australia for the purpose of undertaking a cookery course is a compelling need to remain in Australia. 

The extent of compliance with visa conditions

29.      There is no evidence before the Tribunal to suggest that, except for the breach of condition 8202(2)(a), the applicant did not comply with visa conditions.  Therefore the Tribunal gives some weight to the applicant’s compliance with visa conditions when considering whether the applicant’s visa should be cancelled.

Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

30.      

We have set out above the applicant’s written submissions on hardship.  In her written submissions dated 16 February 2017 the applicant also submits:

·The legal consequences of a decision to cancel the visa

o   The legal consequence would be that she would be subject to ban (sic) for a period of three years for any future temporary visa applications to Australia.

o   That could result in her currently lodged 457 being refused.

o   She would have to return to her home country and wait for three years before she can lodge her 457 visa application from outside Australia.

31. If the Tribunal affirms the delegate’s decision to cancel the visa, the applicant will become an unlawful non-citizen and may be liable to detention under s189 and removal under s198 to the Act if she does not voluntary depart Australia. Additionally, she will be subject to s48 of the Act and will have limited options if applying for further visas.

32.      The Tribunal accepts that there may be some hardship to the applicant if it affirms the delegate’s decision to cancel the visa and gives some weight to this when considering whether the applicant’s visa should be cancelled.

Circumstances in which ground of cancellation arose.  If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

33.      The applicant’s written submissions dated 16 February 2017 seek to address this matter.  The applicant submits that the circumstances in which the ground of cancellation arose were the culmination of a series of circumstances comprising:

a.the “Applicant’s father (sic) health issue”. The applicant submits that her father was “terribly sick since 5/07/2016 in Nepal”.

b.The “Dilemma and delay in choosing further (sic) course of study”.  The applicant submits she needed to discuss, with her father, what she should do in relation to any further study and career plans and she was unable to discuss such matters with her father due to his illness.

c.

The “Early completion of her course”.  The applicant submits that after she commenced studying the Master of Professional Accounting, which course commenced on 10 November 2014) she was given recognition of prior learning for five subjects which she says reduced her course semester from “its normal expected date of completion which is (sic) 7 November 2016”.  The applicant completed the Master of Professional Accounting course on 8 July 2016.  The applicant submits that if the course had run until “its normal expected date of completion which is (sic) 7/11/2016 . . . she would not have been in breach of her student visa condition because she would have been allowed to stay without enrolment any (sic) course from November till end of February as per the policy of the department.  And then should have enrolled in a course by March and applied for a further student visa by 15 March 2017.”

d.The applicant’s “Unawareness of the impact of early course completion on her student visa condition and incorrect advice from the education/migration agent.”  The applicant submits:

§  The applicant was aware that she needs to be enrolled in a course while holding a student visa.

§  The applicant had always been aware that once she fully completes her course(s) for which her visa has been granted she can stay in Australia without enrolment in any further course until she applies for a new student visa.

§  The applicant had been advised by her agent that once she completes her final course for which her student visa has been granted she could work unlimited hours and then stay without any enrolment until she applies for her further student visa before her visa expired.

. . .

. . .

§  Had the applicant know of the complexity and consequence of early exit from my course, she would have made every genuine effort to enrol in a further course and continue her study for the remaining period of her student visa.

§  Thus, the applicant claims she has been a victim of being incorrect information and advice from her previous agent.

§  . . .

§  . . . ”

34.      The Tribunal has considered all of the applicant’s submissions and evidence on these matters.

35.      The applicant says, and the Tribunal accepts, that her father was sick from 5 July 2016. She completed her studies on 8 July 2016.  At the hearing, the applicant said that when she got her certificate (which the Tribunal took to mean her Master of Professional Accounting) her father was still ill.  She indicated that when she spoke to her father he suggested that she remain in Australia.  The applicant applied for and was granted a bridging visa on 3 February 2017.  According to her written submissions, she applied for the bridging visa as she had been “offered a full time position in the role of an Accountant by a reputed and well established company.”  The applicant does not explain why she could not and did not accept that offer.  At the time of the delegate’s decision (21 February 2017) the applicant had remained without enrolment in a registered course for over seven months and wished to pursue a working career in accounting.  The applicant’s father died on 30 July 2017.  The applicant has now remained without enrolment in a registered course for over 2 years.  The applicant does not presently wish to work as an accountant and now wishes to commence further study in cookery.

36.      It is not apparent how her father’s illness and her stated inability to discuss with her father what she should do in relation to any further study and career plans  contributed to her not being enrolled in a registered course of education.  The applicant commenced studying for the Master of Professional Accounting in November 2014.  She submits her father had been “terribly sick since 5/07/2016.”  The applicant completed her Master of Professional Accounting on 8 July 2016.  The applicant says she spoke to her father, whilst he was ill, and he told her to stay in Australia and she decided to remain in Australia.  She accepted that she is now sufficiently qualified to practice as an accountant.  She accepted that she was aware that after she finished her course of study she was expected to return to her country of origin and utilise the skills she acquired from her studies (in accounting).  The applicant did not explain why she needed to discuss with her father what she should do after she completed her Master of Professional Accounting.  It appears her new stated goal of studying cookery was without the suggestion or influence of her father.  The evidence indicates that by 8 July 2016 the applicant had achieved her goal of obtaining qualifications to enable her to practice as an accountant and she had no need or desire to pursue further study for the remaining term of the temporary study visa granted on 3 November 2014.

37.      Having regard to the matters stated in the preceding paragraph, the Tribunal does not accept that her father’s illness, her stated need to discuss, with her father, what she should do in relation to any further study and career plans and the inability to discuss such matters with her father due to his illness, contributed to her not being enrolled in a registered course of education after she completed her Master of Professional Accounting on 8 July 2016.   

38.      For the following reasons, the Tribunal does not accept that the early completion of the applicant’s course of education (on 8 July 2016 as opposed to 7 November 2016) contributed to her not being enrolled in a course of education after she completed her Master of Professional Accounting:

a.the applicant was aware that she needed to be enrolled in a course whilst holding a student visa;

b.the applicant studied in Australia for 8 years and acquired qualifications to enable her to practice as an accountant.

c.The applicant accepted that she was aware that after she finished her course of study she was expected to return to her country of origin and utilise the skills she acquired from her studies (in accounting). 

d.Upon completing her Master of Professional Accounting, she could have and should have returned to Nepal and pursued a career in accounting.  If the applicant genuinely wished to pursue further studies at that time, she could have applied to study and pursued a further course of study.  The evidence establishes that upon completing her Master of Professional Accounting, she had no need or desire to undertake further studies.

e.The applicant says she spoke to her father, whilst he was ill, and he told her to stay in Australia and she decided to remain in Australia.  The applicant thereafter applied for and was granted a bridging visa on 3 February 2017 to pursue work in Australia as an accountant with “a reputed and well established company”, as opposed to enrolling in a course of education.

f.If the applicant was genuinely interested in pursuing further education upon obtaining her Master of Professional Accounting, there was no impediment to her enrolling in a further course of study.

39.      For the same reasons as set out in the preceding paragraph, the Tribunal does not accept that the applicant’s stated “unawareness of time impact of early course completion on her student visa condition and incorrect advice from the education/migration agent” contributed to her not being enrolled in a course of education after she completed her Master of Professional Accounting.

40.      The Tribunal does not accept the applicant’s submissions and evidence in relation to the circumstances in which the ground of cancellation arose and places no weight on the matters advanced by the applicant when considering whether the applicant’s visa should be cancelled.

Past and present behaviour of the visa holder towards the department

41.      There is no evidence that the applicant has been un-cooperative towards the Department.  The applicant submits and the Tribunal accepts that the applicant has never misled the department, she has never “been found of providing misleading or bogus document (sic) to the department” and she has always been open and honest in her dealings with the Department.  This is expected and the Tribunal gives some weight to these matters when considering whether the applicant’s visa should be cancelled.

Whether there would be consequential cancellations under s.140

42. There is no evidence that if the applicant’s visa is cancelled under s 116 of the Act a visa held by another person, because of being a member of the family unit of the applicant, will also cancelled. Accordingly, this matter does not have an additional impact on Tribunal’s consideration of whether the applicant’s visa should be cancelled.

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

43.      This has already been dealt with.  The Tribunal accepts that there may be some hardship to the applicant if the applicant’s visa is cancelled and gives some weight to this when considering whether the applicant’s visa should be cancelled.

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

44.      This matter is not relevant to the Tribunal’s consideration of whether the applicant’s visa should be cancelled.

If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

45.      This matter is not relevant to the Tribunal’s consideration of whether the applicant’s visa should be cancelled.

Any other relevant matters

46.      The applicant concedes that that there is no compelling need for her to remain in Australia.  Notwithstanding that she says she now wishes to study cookery, she has not enrolled in any registered course of education in cookery.  At the hearing the applicant said that the hardship that may be caused if the visa is cancelled is that upon her return to Nepal she would be seen has someone who did not succeed.  The evidence does not support this submission.  The applicant has completed the studies she has undertaken and is now qualified to practice as an accountant.    

Conclusion

47.      Considering all the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

DECISION

48.      The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Lilly Mojsin
Member

Peter Newton
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.