PANT (Migration)

[2020] AATA 46

PANT (Migration) [2020] AATA 46 (6 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms AACHAL PANT

CASE NUMBER:  1731613

HOME AFFAIRS REFERENCE(S):          BCC2017/3611221

MEMBER:Stephen Conwell

DATE:6 January 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 573 Higher Education Sector visa.

Statement made on 06 January 2020 at 11:44am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – not enrolled in registered course – financial issues – divorce – genuine student – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 116, 140
Migration Regulations 1994 (Cth), Schedule 2 cls 573.223, 573.231, condition 8516

CASES

Singh v MIBP [2016] FCA 679

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 7 December 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).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant no longer met subclauses 573.231 or 573.223(1A) and had not complied with condition 8516 attaching to 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.

3. The applicant appeared before the Tribunal by video from Hobart on 11 December 2019 to give evidence and present arguments. Mr. Milan Ghimire, a friend of the applicant accompanied the applicant and was sworn in as a witness.

4. The applicant provided a copy of the delegate’s decision to the Tribunal.

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. 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.

   Background

7. The applicant is a citizen of Nepal and is currently 23 years old. She was granted a Subclass 573 Student Visa on 22 June 2016 and arrived in Australia a few days later. Prior to her arrival, the applicant participated in an arranged marriage in accordance with her cultural practice. Her husband followed the applicant to Australia some months later, arriving in February 2017.

8. Shortly after arriving in Australia the applicant commenced Foundation Studies at the University of Technology Sydney (UTS) as a pathway to a Bachelor of Nursing, for which she was also enrolled. The applicant was unable to pass the Foundation Studies and was therefore unable to progress in her nursing studies. Upon cancellation of her enrolment in the Bachelor of Nursing the applicant consulted a migration agent, on whose advice she enrolled in Diploma of Nursing at Careers Australia, only to have this education provider pass into voluntary administration in mid-2017. The applicant then enrolled in a Diploma of Childhood Education at New Era and was studying at the time she received the Notice of Intention to Consider Cancellation (NOICC) on 14 November 2017.

   Does the ground for cancellation exist?

9. 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 is attached to the applicant’s visa. This condition requires that the applicant must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa. 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.

10. 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.

11. 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 on 14 June 2016, the relevant instrument specifying eligible education providers for this visa is IMMI 16/003.

12. 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).  As such it appeared that the applicant no longer satisfied the primary criteria for the grant of the visa and did not comply with condition 8516. 

13. The decision record sets out that at the time she was granted a 573 Higher Education visa the applicant satisfied the primary criteria for the 573 visa and met cl.573.231 or cl.573.223(1A). These clauses require the applicant to be enrolled in a bachelor or master degree course, or in a course of study that is a principal course of a type specified for subclass 573 visas by the Minister in an instrument made under r.1.40A.

14. The decision record notes that according to the Provider Registration and International Student Management Systems (PRISMS), the visa holder has not held enrolment in a course of study specified for their visa since 20 April 2017.  Therefore, she has not complied with condition 8516 attaching to her visa. This meant that her visa may be cancelled under paragraph 116(1)(b) of the Act. According to the delegate’s decision, the departmental systems indicated that at the time of the NOICC, the applicant was no longer enrolled in a bachelor or master degree course, or in a course of study that is a principal course of a type specified for subclass 573 visas by the Minister in an instrument made under r.1.40A.

15. On the basis of the information set out in the delegate’s decision, and the documentary and oral evidence of the applicant, the Tribunal is satisfied that when the applicant’s enrolment in a Bachelor of Nursing was cancelled on 20 April 2017, she did not continue to satisfy cl.573.231 or cl.573.223(1A), and therefore did not continue to be a person who would satisfy the primary criteria for the grant of the visa.    There is no evidence before the Tribunal to indicate that the applicant satisfied the secondary criteria for the grant of the visa.  The Tribunal therefore finds that she breached condition 8516 of her student visa.

16. On the evidence before it the Tribunal the applicant fails to meet cl.573.231.            

17. 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 power to cancel the visa should be exercised.

    Consideration of discretion

18. 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 to or remain in Australia

19. On the evidence before it, the Tribunal is satisfied that the applicant’s original intention to travel to and stay in Australia was to study.  

20. During the Tribunal hearing the applicant was invited to make submissions regarding any compelling need to remain in Australia. She advised that it was her ambition to study overseas and ideally obtain a nursing qualification since her mother is a nurse who is currently working in Israel. She also enjoys working with children, hence her current enrolment in the childcare sector. The Tribunal has considered these reasons but does not give weight to the applicant having a particularly compelling need to remain in Australia.

    The extent of compliance with visa conditions

21. There is no evidence before the Tribunal that the applicant has not complied with other visa conditions and the Tribunal has given weight to the applicant in this regard.

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

22. During the course of the hearing the Tribunal discussed any hardship that may arise as a result of the visa being cancelled. It was submitted on behalf of the applicant that she was unable to cope with higher education at the relevant time due to the difficulties which surfaced in her marriage not long after her husband’s arrival in Australia. The applicant’s evidence is that her parents struggled financially to afford her application to study in Australia. She still harbours an ambition to obtain overseas qualifications, which are well regarded in Nepal. If she is not able to complete an overseas qualification after having spent so much of her parents’ money thus far, it would be a great financial and emotional cost to her and to her family.

23. The Tribunal accepts that if the applicant were unable to continue the courses she is now enrolled in, she would suffer financial hardship as a result. The Tribunal places some weight in the applicant’s favour in this regard.

    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

24. The applicant’s marriage was ‘an arranged marriage’ as is the custom in her home country. She married a few weeks before her arrival in Australia in June 2016. Her husband arrived in Australia some eight months later, arriving in February 2017. Within a short time of his arrival onshore, the applicant claims that her husband’s behaviour strongly indicated that he was not happy in the marriage. She concluded that his motivation for marrying her may have been for immigration purposes, given that her husband was aware (at the time of their marriage) of her intention to apply to study in Australia.

25. In addition to trying to cope with the considerable demands of studying overseas in a foreign tongue, the deterioration of her marriage placed the applicant under further stress, particularly given that her parents in Nepal were advising her to ‘put up with’ her husband’s behaviour for the sake of saving the marriage.

26. The applicant’s marriage woes led her to consult with a relationship counsellor on 20 June 2018.  The certificate from that consultation notes that the applicant attended alone and the husband could not be contacted.  The marriage ended in divorce which was certified by the Family Court of Australia on 13 December 2018. The Tribunal accepts the evidence tendered in respect of the applicant’s marriage breakdown and divorce.

27. The Tribunal accepts the applicant was dealing with unexpected and troubling marital problems at the relevant time. The Tribunal places weight on these factors in the applicant’s favour due to their effect on her ability to go on to a higher education course following her failing her Foundation studies or to take steps to change her visa class. According to her evidence, because of the issues in her personal life, in particular her marriage breakdown, the applicant relied on her former agent to assist her however but it appears that she was misadvised with respect to her visa conditions, resulting in her enrolling in studies which do not meet the requirements of the subclass 573 Higher Education visa.

28. After careful consideration of the applicant’s circumstances and upon reflecting on the credibility of the applicant in the course of the hearing, the Tribunal finds the applicant to be a genuine student for whom Australian qualifications would be a significant benefit for her future career prospects. The Tribunal accepts that if the applicant is unable to continue the courses she is now enrolled in, she and her family) would suffer financial hardship as a result. The Tribunal places some weight in the applicant’s favour in this regard.

29. The Tribunal is mindful that the cancellation of the visa means the applicant could become an unlawful non-citizen liable for detention and removal from Australia. Moreover, the applicant would be subject to s.48 of the Migration Act and consequently would have limited options to apply for further visas in Australia. However, those are the intended consequences of the legislation and in the applicant’s case are not of themselves, reasons why the visa should not be cancelled.

    Past and present behaviour of the visa holder towards the department

30. There is no evidence before the Tribunal to indicate the applicant has not co-operated with the Department and the Tribunal has given the applicant some weight in this regard.

    Whether there would be consequential cancellations under s.140

31. There is no evidence before the Tribunal that there would be any consequential cancellations under s.140 of the Act.

    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

32. The cancellation of the visa means that the applicant could potentially become an unlawful non-citizen liable for detention and removal from Australia. The applicant would be subject to s.48 of the Migration Act which would limit his options for applying for a visa. In future the applicant would also have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. As those are the intended consequences of the legislation, they are not of themselves sufficient reason for the applicant’s visa to not 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

33. There is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in Australia breaching any international obligations. On the evidence submitted the applicant does not have any children.

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

34. The Subclass 573 Student Visa is not a permanent visa.

    Any other relevant matters

35. The Tribunal has taken into account the fact that the applicant understands she should have ensured she applied to change her visa class before ceasing her studies at the Higher Education level. The Tribunal found her evidence to be straightforward and credible and accepts that her conduct was affected by the issues she was facing at the time.  The Tribunal has also placed weight on the applicant having continued to study up to and including the time of the Tribunal hearing.

    Conclusion

36. The Tribunal has considered the applicant’s circumstances individually and cumulatively. While there are some aspects in the applicant’s case that weigh against her, on balance, the Tribunal is satisfied that the majority of considerations weigh in favour of the applicant. The Tribunal accepts the issues encountered by the applicant together with the nature of the breach and her continuing efforts to engage in study are sufficient reasons for the visa not to be cancelled.

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

    DECISION

38. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Stephen Conwell
    Member