NEUPANE (Migration) - [2020] AATA 1146

NEUPANE (Migration) [2020] AATA 1146 (23 January 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr SANTOSH NEUPANE
CASE NUMBER:  1713413
HOME AFFAIRS REFERENCE(S):          BCC2017/1422536
MEMBER:Melissa McAdam
DATE:23 January 2020
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 23 January 2020 at 9:31am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered Higher Education course – limited academic progress – applicant departed Australia – disruption caused by the Nepal earthquake – applicant changed to Vocational course – physical and mental health problems – visa period expired – decision under review set aside
LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, Schedule 2 cl 573.223, 573.231; Schedule 8; Condition 8516; r 1.40
CASES
Singh v MIBP [2016] FCA 679

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 20 June 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 of the Migration Act 1958 (the Act).
The applicant was represented in relation to the review by his registered migration agent.
The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant had not complied with Condition 8516. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
Condition 8516 sets out that the Visa holder must continue to be a person who would satisfy the primary or secondary criteria as the case requires, for the grant of the visa.
NOICC
On 23 May 2017 the Department Delegate sent a Notice of Intention to Consider Cancellation of the applicant’s Student visa under section 116 of the Act (‘NOICC’).
In the NOICC the Delegate set out the following:
-It appeared the applicant had not complied with Condition 8516 which was imposed on his visa.
-On 18 March 2015 the applicant satisfied the primary criteria for a Subclass TU-573 Higher Education Sector visa (‘student visa’). The criteria for the grant of the student visa required him to meet, among other criteria, subclause 573.231 or subclause 573.223(1A), which states:
573.231
If subclause 573.223(1A) does not apply:
(a) the applicant is enrolled in, or is the subject of a current offer of enrolment in, a course of study that is a principal course; and
(b) the principal course is of a type that was specified for Subclass 573 visas by the Minister in an instrument:
(i) made under regulation 1.40A; and
(ii) in force at the time the application was made.
eligible higher degree student means an…

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.

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Details

AGLC: NEUPANE (Migration) [2020] AATA 1146
Case: [2020] AATA 1146
Decision Date: 23 January 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) reviewed a decision to cancel the Student (Temporary) (Class TU) visa, Subclass 573, held by the applicant, Mr. Neupane. The cancellation was based on the applicant's alleged failure to comply with a condition of his visa, specifically condition 8516, which requires a visa holder to continue to satisfy the criteria for the grant of the visa.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was established, and if so, whether the discretion to cancel the visa should be exercised. The Tribunal was required to determine if Mr. Neupane had ceased to be a person who would satisfy the primary criteria for his visa, thereby breaching condition 8516. If this ground was established, the Tribunal then had to consider all relevant circumstances, including government policy, to decide whether to uphold the cancellation.

The Tribunal found that the ground for cancellation under s 116(1)(b) was established because Mr. Neupane had withdrawn from his higher education course and subsequently enrolled in a vocational course, which meant he no longer met the criteria for his Subclass 573 visa. However, the Tribunal then considered the exercise of discretion. It weighed factors including the applicant's initial purpose of study in Australia, his departure from Australia, his compliance with other visa conditions, the hardship caused by the cancellation, and the circumstances leading to the non-compliance. The Tribunal accepted that Mr. Neupane's academic difficulties and subsequent withdrawal were significantly impacted by the Nepal earthquake, his father's illness, and his own physical and mental health problems, supported by documentary and oral evidence.

The Tribunal set aside the decision to cancel Mr. Neupane's visa. It concluded that while the ground for cancellation existed, the compelling and compassionate circumstances presented by the applicant, particularly his health issues and the impact of the earthquake, warranted the exercise of discretion not to cancel the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

On 21 January 2020 the applicant’s Agent submitted the following written material:-A Course progress letter from the applicant’s current education provider in Nepal, Banepa Siddhartha College, dated 19 January 2020. The letter confirms the applicant is a regular student at the college and has passed all his subjects so far in a Bachelor of Business Studies.-An updated medical report from Dr Ajay Risal, dated 8 January 2020. Dr Risal states that the applicant was previously evaluated and managed for [a named condition]. He was taking medication until November 2019. He has ceased taking medication and has significantly improved. His symptoms have disappeared. He can resume his daily activities, studies and work without disturbance.CONSIDERATION OF CLAIMS AND EVIDENCE Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.Does the ground for cancellation exist?s.116(1)(b) - non-compliance with conditions A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8516 attached to the applicant’s visa. This condition requires that the Visa holder must continue to be a person who would satisfy the primary or secondary criteria as the case requires, for the grant of the visa. Relevantly, it was a criterion for grant of the applicant’s Subclass 573 visa that the applicant is an eligible higher degree student who satisfies cl.573.223(1A), or, if not, is enrolled in, or the subject of a current offer of enrolment in a principal course of a kind specified for that subclass by the Minister in an instrument under r.1.40A that was in effect at the time of the visa application: cl.573.231. The relevant instrument under r.1.40A in effect at the time of the visa application was IMMI 14/015. The definition of ‘eligible higher degree student’ requires that the applicant is enrolled in a principal course with an ‘eligible education provider’ that is a Bachelor’s degree, Master’s degree by coursework or, for visa applications made on or after 23 November 2014, an advanced diploma in the higher education sector: cl.573.111. ‘Eligible education provider’ means an education provider specified in an instrument made under cl.573.112. As the applicant applied for the visa before 1 July 2014, the relevant instrument specifying eligible education providers for this visa is IMMI 14/007. In respect of the criterion requiring the applicant to be enrolled, this requires the applicant to maintain enrolment while they hold the visa: Singh v MIBP [2016] FCA 679. In the present case, the applicant’s visa was cancelled on the basis the applicant did not continue to be a person who would satisfy either subclauses 573.231 or 573.223(1A). He therefore no longer satisfied the primary criteria for the grant of the visa and did not comply with condition 8516.

Decision

Reasons for decision

On 30 May 2017 the applicant provided the following written response to the Delegate:- He had not intentionally violated visa condition 8516.- He enrolled in a Diploma of IT at Strathfield College. He attached a letter of offer from the college, dated 17 August 2015. He completed the course and submitted a Statement of Attainment from the college.- He failed to complete a Bachelor of IT at Federation University because he found the course highly complex. He submitted a copy of his results recording fails in three subjects.- Following his completion of the IT Diploma course at Strathfield College the applicant received an offer of enrolment to study a Bachelor of Business Information Systems at the Australian Institute of Higher Education.Delegate’s Decision The applicant provided a copy of the Delegate’s decision to the Tribunal. The Delegate recorded that the applicant’s visa was due to expire on 15 March 2018. The Delegate found that the applicant had not complied with Condition 8516 and decided to cancel the visa.Information to the Tribunal The Department’s Movement Records for the applicant show that he departed Australia on 30 January 2018 and has not returned.S.359(2) request On 23 August 2019 the Tribunal wrote to the applicant under s.359(2) of the Act requesting him to provide information relevant to his current circumstances and why his Student visa should not be cancelled.S.359(2) response On 6 September 2019 the applicant’s Agent provided the following written response:… there exists compelling and compassionate circumstances surrounding breach of the visa condition. …The applicant was granted student visa on 18/03/2015 to undertake higher education (Bachelor of Information Technology, Information system at Federation University) as that is the standard progression for someone who has completed higher education in his home country, Nepal, i.e. to undertake higher education. Vocational qualifications aren’t that prevalent. There aren’t many provisions for VET (Vocational Education) to help students transition from higher secondary education to degree qualification. He too, wanted to obtain degree qualification when he made the decision to undertake further education in Australia. He arrived in Australia on 23/03/2015 and started his studies. He started living with his Aunt (Dad’s sister) as she was resident here. Living away from the family members and in a new environment was challenging and hard at times but he carried on with his studies. The teaching methods and assessments were very different from the methods and techniques used in Nepal. He was struggling but tried his best to cope with the study load. Soon after the applicant arrived in Australia, he was adversely impacted by the earthquake that hit Nepal on April 2015. The tragedy and the horror of what his family and loved one faced was too real to be neglected. His home was destroyed by this earthquake and his father was traumatised by this. Being far away from them and not being able to comfort and assist in any way made him distressed and angry. He was not able to concentrate on his studies, the constant floods of news and media posts of the disaster made it hard to get it out of his mind. As a result, he failed 3 subjects. In the meantime, he had a misunderstanding with his Aunt and he was asked to leave and find a new place of residence. This was unexpected and hurtful but he was left with no other option. He moved to a new place of residence with other students but it was tough for him adjust in this environment. They were not very amiable and supportive. But he realized he had to carry on with his duties and so he did. To add to his misery, he also had a personal crisis at that same time. His girlfriend of 3 years broke up with him during Christmas time in 2016 and it was really agonizing and painful. He tried to put it behind but it wasn’t easy and he wasn’t succeeding in doing that. He was depressed and found no joy in anything. He had lost interest in doing anything. Not being able to cope with the hardships, he decided to change his course and got enrolled in Diploma of Information Technology at Strathfield College. His goal was to complete higher education eventually but at that time a course with lesser load seemed liked a smarter decision. He successfully completed his Diploma in April 2017. Even when he was undertaking his Diploma, he was still in much anguish and experienced mental suffering. He was having difficulty coping in a new place and new environment and in new friends circle. (Later he was diagnosed with [a condition]). He initially experienced [specified medical symptoms]. He went for medical check-up and he was given medication for it. Nevertheless, his health kept deteriorating and he kept feeling more depressed and gloomy by the day. He couldn’t understand what was going on with him and pain of above mentioned events didn’t subside. As planned, he intended to complete higher education (Bachelor’s Degree) and consulted with his agents regarding that. But due to unavailability of the intake immediately after the completion of diploma, he had to enrol in General English (To maintain visa condition). He had already begun the process of getting enrolled in Higher education at that time. However, before he could get his COE, he received letter from department to consider cancellation due to breach of visa condition. On 23/05/2017, he received letter from department of immigration notifying him of their intention to consider cancellation. He also received his COE immediately after this notice was received. The Immigration lawyer at that time provided submission to Department in response to NOICC along with his COE for higher Education. However, the department decided to carry forward the cancellation. On 20/06/2017, he was notified of [the] visa cancellation. Please note that at the time of cancellation he was enrolled in Higher education. As per the advice from the agent and his family, he submitted a review appeal with AAT. After the cancellation, he was feeling very low but wanted to continue with his studies. He went to the college for some time but he was in a bad shape mentally and physically. He did go for medical check-ups often but it was not helping him recover. This cancellation notice served as final blow to send him down the path of [specified conditions]. His father fell sick too and had to be hospitalised due to [specified problems]. This news added to his mental sufferings. He couldn’t maintain his course progress. He was constantly agonized and got [specified symptoms]. He was getting a lot of [related] symptoms [including specified symptoms]. He felt fearful and nervous all the time. He wanted to get his act together and assume responsibility but he was helpless at the hands of his own mental sufferings. He shared his severe health condition with his parents and they finally asked him to return and get proper treatment done. He left Australia with a heavy heart. Due to his unfit mental state, he even missed his first flight to Nepal and had to book another one losing the cost of his flight ticket. During his return, in those 16 hours in the flight, he [experienced specified symptoms]. After his arrival, his parents talked to him and comforted him. He was taken to several hospitals for check-up. He had [specified checks] but doctors couldn’t diagnose him with anything. Finally he was diagnosed with [named conditions] (please find report attached) at Dhulikhel Hospital, one of the prominent hospitals of Nepal. He received treatment for these conditions and with the help from his parents and friends, he is now feeling much better. He can tell the difference in his perspective in life. He has started enjoying things and started taking interest in things. He feels much regret in recognizing the fact that he wasted his time and money and did not even achieve anything. He feels for his parents. They put their hard earned money in making sure he was able to get the education he wished for. The applicant earnestly wishes to complete his degree studies (qualification) and is prepared to make necessary arrangement for the COE and other required documents if the officer will consider to remit his matter to department for further consideration. With this submission, the applicant would like to urge the officer to consider his circumstances and revoke/remit his cancellation.

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 the visa should be cancelled.Consideration of discretion 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 applicant’s travel to and stay in Australia The applicant was in Australia on a Student visa for the purpose of study. The Department’s records show he completed a Diploma course in 2016 and an English language course in 2017. He also passed three subjects in his Bachelor degree course. He therefore spent a not insubstantial amount of his time in Australia studying and fulfilling the purpose of his being in Australia. The Tribunal therefore gives this factor some weight in the applicant’s favour, against cancelling his visa.whether the applicant has a compelling need to travel to or remain in Australia The applicant has departed Australia. He did not present any compelling need to travel to Australia. He expressed a wish to complete his study in Australia but did not attach any particular urgency or importance to being able to travel here. The Tribunal considers this factor weighs in favour of cancelling the applicant’s visa.the extent of compliance with visa conditions The information before the Tribunal indicates the applicant has complied with his other visa conditions. The Tribunal therefore gives this factor some weight in the applicant’s favour.the degree of hardship that may be caused to the applicant or his family members should his student visa be cancelled The cancellation of the applicant’s visa has resulted in him having to depart Australia without completing his degree course here. It has therefore caused disruption to his life, study and career plans. It has also cost him financially. The Tribunal therefore accepts that the visa cancellation has resulted in a level of hardship to the applicant. The Tribunal gives this factor some weight in the applicant’s favour.the circumstances in which the ground for cancellation arose The Tribunal notes that the grounds for cancellation arose when the applicant withdrew from his Bachelor degree course because he found it too difficult. The applicant has presented evidence that he found it very difficult to study for a period of time because he was emotionally distressed by the impact of the April 2015 earthquake upon his family, being suddenly forced out of his aunt’s home, his father’s illness and his own physical and mental health problems. The applicant provided detailed oral evidence about these events. He also submitted documentary evidence regarding both their occurrence and their impact. The Tribunal accepts that the events happened as described by the applicant.