Pant (Migration)

[2019] AATA 6640

Pant (Migration) [2019] AATA 6640 (28 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Sujana Pant

CASE NUMBER:  1810635

HOME AFFAIRS REFERENCE(S):          BCC2017/3624968

MEMBER:Helen Kroger

DATE:28 November 2019

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

Statement made on 28 November 2019 at 10:04am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered course – deferment due to unplanned pregnancy – family medical issues – required to study English requisite again – meeting with the Dean of the faculty – renewed confirmation of enrolment – additional family support – decision under review set aside    

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8; Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 9 April 2018 made by a delegate of the Minister for Home Affairs 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 basis that the applicant had not maintained enrolment in a registered course and the grounds for cancellation outweighed the grounds for not cancelling the 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 on 27 November 2019 to give evidence and present arguments.

4. The applicant provided the Tribunal with a copy of the delegate’s decision record for the purpose of its consideration.

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. 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 (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 case, 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 case, the applicant’s visa was cancelled on the basis that the applicant was not enrolled in a registered course. The applicant was invited to respond to the Notice of Intention To Consider Cancellation (NOICC) on 21 November 2017 and 28 March 2018 with the applicant responding to the original NOICC on the 21 November 2017.  At the hearing, the alleged breach (as discussed by the delegate in his/her decision), was put to the applicant with particular regard to the alleged breach of non enrolment for a period of around seven months between 23 June 2017 and 19 January 2018.

9. The applicant did not dispute the above claims as set out in the delegate’s decision, at hearing.  On the evidence before it, namely the applicant’s admission during the hearing, the Tribunal finds that the applicant was not enrolled in a registered course.  Accordingly, the applicant has not complied with condition 8202(2).

   Consideration of the discretion to cancel the visa

10. 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’.

11. The information provided to the Tribunal at the hearing has been considered by the tribunal in its exercise of discretion as outlined below.

    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

12. The applicant, Ms Pant, is a Nepalese national who is 30 years of age, and travelled to Australia for the purpose of undertaking a Masters of Business Administration to further her professional and employment opportunities in Nepal. She is married and her husband travelled with her from Nepal, whilst she is studying. Since her arrival, she has had a son, born in April 2017, and explained to the Tribunal that this was an unplanned pregnancy.

13. On her arrival in Australia, she commenced the requisite English language course at the University of Wollongong which she completed. She told the Tribunal that she did not achieve the requisite marks to go directly into the Masters of Business Administration (MBA) and was required to complete a Graduate Diploma first before going on to the MBA.  She completed five out of 8 subjects and successfully deferred her course after the second semester due to an ‘unplanned pregnancy’. She described this time as having her life “turned upside down”. She claims she experienced medical issues for two months after the birth and found it too difficult to study whilst adapting to the demands of being a new mother.

14. She later met with the Dean of her faculty in November 2017 to discuss recommencing her studies who advised that she was required to study the English requisite again to proceed. The applicant complied with this recommendation and was awaiting the entry commencement of the graduate diploma program  when she received the advice from the Department that her visa was being cancelled.

15. The visa applicant has secured a COE to resume studies for a graduate diploma leading to a Masters of Business Administration and offered to provide a copy of this to the Tribunal for its consideration. The applicant has also provided a copy of the deferment sought from the education provider in 2017 that was approved. The Tribunal was satisfied with the applicant’s candid and immediate responses to these requests and having considered all the evidence before it, the Tribunal has given significant weight to the applicant’s endeavours to resume study. The applicant has organised the support of her in-laws to help care for her son so that she can return to studies and concentrate on her course requirements.

16. The Tribunal has carefully considered the evidence before it and given careful regard to the applicant’s oral evidence and found her testimony persuasive in demonstrating her commitment to successfully completing a post graduate degree and why this is so important to her. She explained to the Tribunal the importance attached to a MBA from Australia in Nepal, and the potential opportunities it will provide her and her family, not only because of the weight attached to the nature of the qualification, but the development of knowledge that she claims “will set her up for life”. She indicated that the birth of her son was an unexpected and unplanned event, but was persuasive in demonstrating her determination to complete what she had set out to achieve.

17. The Tribunal gives significant weight to these factors in favour of the applicant compred to any weight given to cancelling her visa.

    The extent of compliance with visa conditions

18. There is nothing before the Tribunal to indicate that the applicant has breached other conditions of the visa. The Tribunal expects that a visa holder will generally adhere to the conditions on their visa and the Tribunal has considered the breach of three months in terms of the extended study period of a course.  As such, the Tribunal gives some weight to the fact that there appears to be no additional breaches.

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

19. Ms Pant consistently indicated at the hearing that her primary reason for being in Australia was to complete a Masters of Business Administration, so that she could avail herself, and consequentially, her family to greater opportunities, not only in terms of direct employment opportunities, but also in expanding her knowledge. She consistently submitted that in her home country, Nepal, a developing country, that the opportunities that were available to those with an MBA from Australia was far greater than those who had local qualifications.

20. She indicated that having the ability to avail herself of expanded opportunities in Nepal by virtue of an Australian qualification would be good for her family as a consequence of her being in a better position. Whilst the applicant did not submit that she would suffer psychological or emotional hardships should her visa cancellation be affirmed, she was earnest and persuasive in her direct and honest response to the Tribunal’s questions, indicating the benefits that would be derived from completing a post graduate qualification.

21. The Tribunal has carefully considered the degree of hardship the applicant potentially faces should the visa be cancelled. At no stage did the applicant seek the sympathy of the Tribunal by claiming severe adverse consequences but rather was compelling in her explanation of the way in which the decision would impact on future employment opportunities and the way in which the knowledge she gains would shape the life of her and her family in Nepal. Accordingly the Tribunal gives more weight to the significance of the hardship should her visa be cancelled than the significance of the time of the breach.

    Circumstances in which ground of cancellation arose

22. As outlined above, Ms Pant and her husband had an ‘unplanned pregnancy’ that resulted in the birth of a son on 19 April 2017. The applicant continued to study for a period of time and claims that after his birth, she suffered some medical issues for a period of two months. As new parents without any immediate family to support them, the applicant chose to stay at home and care for her son and sought deferment for a period of 6 months. When she found it physically not possible to resume studies at that stage she belatedly sought a meeting with the Dean of the faculty and resumed studies in November 2017. It was during this time that she received the first NOICC from the Department.

23. During the hearing, the applicant assumed full responsibility for the circumstances as they arose and claims that her in-laws are currently visiting to assist her with the care of her son. The applicant has initiated contact with the education provider and has secured a COE should her visa cancellation be set aside. In her testimony, she was candid and genuine and accordingly the Tribunal has given significant consideration to the oral evidence.

24. The Tribunal has considered the circumstances around the time of the cancellation, the unplanned pregnancy and birth of the applicant’s son, her engagement with the education provider during the relevant period of time and her demonstrated maturity in personally dealing with the circumstances before her.

25. Given these circumstances as outlined above, the Tribunal gives significant weight to the reasons why the applicant was not enrolled in a registered course of study and accords significant weight in favour of the applicant compared to any weight given in favour of cancelling the visa.

    Past and present behaviour of the visa holder towards the department

26. There is nothing before the Tribunal to indicate that the applicant has not cooperated with the Department or the Tribunal in her dealings.

    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

27. It is unlikely that the visa applicant would be detained but rather provided with a time limited period in which he can leave the country or apply for review of the decision.

    Whether any international obligations would be reached as a result of a cancellation

28. There is nothing before the Tribunal to indicate there are international obligations to consider.

    Any other relevant matters

29. The Tribunal is satisfied there are no relevant  matters for further consideration.

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

    DECISION

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

    Helen Kroger
    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.