Panthi (Migration)

[2022] AATA 2583

Panthi (Migration) [2022] AATA 2583 (26 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Josheph Panthi

REPRESENTATIVE:  Mr Babu Chokkappa

CASE NUMBER:  2203041

HOME AFFAIRS REFERENCE(S):          BCC2021/2332323

MEMBER:Frank Russo

DATE:26 July 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 26 July 2022 at 11:00am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not enrolled in registered course – discretion to cancel visa – mother’s illness, father’s job loss and ceasing of financial support – enrolment cancelled for non-payment of fees – approach to college to arrange payment plan – long period of non-enrolment – new enrolment in different subject area after department’s notice issued – good study record – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 116(1)(b), 359AA

Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)(a)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 28 February 2022 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the applicant was not enrolled in a full-time registered course of study since 8 July 2019 until the date of the delegate’s decision on 22 February 2022. 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 is a 24-year-old Nepalese national. He first arrived in Australia on 13 February 2017, holding a Student visa, which was granted for the purpose of studying a Certificate IV in Accounting, Diploma of Accounting and an Advanced Diploma of Accounting. On 22 May 2019 the applicant was granted a second Student visa in order to complete a Bachelor of Professional Accounting. The applicant’s enrolment in the Bachelor of Accounting was cancelled in July 2019 on the basis of non-payment of course fees.

4. The applicant appeared before the Tribunal by telephone on 19 May 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

5. The applicant was represented in relation to the review.

6. 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

7. 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 (Cth) (the Regulations). If the applicant has breached that condition, under s 116(1) of the Act, the visa may be cancelled.

8. In addition to his application form for review and the reasons for decision of the delegate and a copy of the notice of decision sent by the Department, the applicant provided the Tribunal with responses to the hearing invitation, as well as an affidavit from the applicant’s father, which attached a bank statement, and an affidavit of the applicant, which attaches a number of documents, including evidence of the applicant’s his previous studies in Australia, evidence regarding his mother’s medical condition and treatment and evidence of communication between the applicant and his college regarding payment of fees and the applicant’s circumstances. Following the hearing, the applicant provided evidence of his mother’s positive test result for COVID-19.

9. I have also had regard to the Department file and had regard to the information on the file. In particular, I have had regard to the documents the applicant provided to the Department on 29 January 2022 in response to the notice of intention to consider cancellation (NOICC) of his visa, which include a submission from the applicant and various other attachments, including medical information regarding his mother’s medical condition.

   Did the applicant comply with Condition 8202?

10. 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 full time registered course: 8202(2)(a)

    ·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than, the course in relation to which the visa was granted: 8202(2)(b)

    ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and

    ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).

11. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a full-time registered course.

12. The applicant gave evidence that he first arrived in Australia in early 2017, holding a Student visa. While holding his first Student visa, the applicant completed a Certificate IV in Accounting and a Diploma of Accounting at Holmes Institute. The applicant was scheduled to complete an Advanced Diploma of Accounting while holding his first Student visa, however he gave evidence that he completed most of the units, but required some further time to complete some units, and therefore applied for the Bachelor of Professional Accounting to give him more time with his studies and he applied for a second Student visa. The applicant provided a statement of attainment for completion of the Advanced Diploma of Accounting from Holmes Institute, although he stated was not awarded the qualification because he immediately started studying the Bachelor of Professional Accounting.

13. The applicant told the Tribunal that during his first semester of study towards the Bachelor of Professional Accounting his mother became unwell. His parents were his primary source of financial support for his fees, and due his mother’s illness, his parents could not send him money. He gave evidence that he asked Holmes Institute for some additional time to sort out the situation, including a request to defer his studies and re-enrol in the following semester, however he claims that he did not receive a satisfactory or helpful response from the college. He claims that the college insisted he pay his course fees, otherwise his confirmation of enrolment (CoE) would be cancelled. He claims that his parents told him they would manage the payment of course fees for him, however his mother’s health continued to worsen.

14. The applicant conceded at the hearing that he did breach the enrolment condition of his Student visa, however he sought to explain the reasons for the breach, which the Tribunal explained are relevant to the discretion whether to cancel the visa.

15. Although the applicant’s evidence regarding his enrolment is similar to the information contained in an extract of his enrolment record from the Provider Registration International Student Management System (PRISMS), the Tribunal noted that his PRISMS record contains slightly different details, and therefore put the particulars of the information from this record to him using the procedure contained in s.359AA of the Act.

16. The Tribunal explained to the applicant what the PRISMS database is and the relevance of the records to the review before the Tribunal. The Tribunal explained that according to his PRISMS record he was enrolled in a Certificate IV in Accounting in 2017, which he did not commence. He was then enrolled in a Certificate IV in Business and a Diploma of Accounting, which he completed in July 2017 and April 2018, respectively. He completed an Advanced Diploma of Leadership and Management in February 2018. He was enrolled in a Bachelor of Professional Accounting from March 2019 to December 2021, however this enrolment was cancelled on 8 July 2019 due to non-payment of fees. He is currently enrolled in a Certificate IV in Commercial Cookery, which commenced on 11 April 2022 and is due to end on 8 October 2023. He is approved to study a Diploma of Hospitality Management and a Graduate Diploma of Management (Learning), the latter of which ends on 6 April 2025.

17. The Tribunal explained to the applicant the consequences of relying upon the information. The applicant confirmed he understood the relevance of the information. The applicant requested a five-minute adjournment to consider the information put to him, which the Tribunal granted. Following this brief adjournment, the applicant chose to respond to the information at the hearing. The applicant did not dispute that his enrolment in the Bachelor of Professional Accounting was cancelled on 8 July 2019.

18. From his evidence, the applicant concedes that he was not enrolled in a registered course of study from 8 July 2019 to 22 February 2022, the date of the delegate’s decision, and had failed to maintain his enrolment in accordance with condition 8202. This is also confirmed by the evidence from his PRISMS enrolment record. The applicant confirmed that he therefore accepts that there are grounds for cancellation of the visa.

19. On the evidence before the Tribunal, the applicant was not enrolled in a full time registered course. Accordingly, the applicant has not complied with condition 8202(2)(a).

    Consideration of the discretion to cancel the visa

20. 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 Procedural Instruction ‘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

21. The applicant gave evidence that his purpose for remaining in Australia remains to obtain qualifications from Australia which will assist him with his career in Nepal. He stated that while he has a Certificate IV and Diploma in Accounting, the level of these qualifications is insufficiently high to build a career in Nepal. To build a career as an accountant he would need to complete at least the Bachelor degree, however he did not have sufficient funds to re-enrol in a Bachelor degree course.

22. The applicant gave evidence that he is currently enrolled in the Certificate IV in Commercial Cookery as this is a field that interests him, and it is a course that his family can afford to support him with. He stated that soon after arriving in Australia he started working casual jobs in the hospitality sector. He stated that he started work as a kitchen hand/assistant, and as he learned more, he became a grill chef. He stated that he wishes to make a career out of hospitality. His mother also worked as a chef in Nepal. The applicant stated that if the Student visa is not cancelled, he intends to complete the Certificate IV in Commercial Cookery and the Diploma of Hospitality Management. Whether he also undertakes the Graduate Diploma of Management (Learning) will depend on his mother’s health and his parents’ long-term financial situation. He stated that he wishes to return home to Nepal as soon as possible to be with his parents.

23. The Tribunal raised various potential concerns with the applicant and gave him an opportunity to respond to each as a matter of procedural fairness. Amongst these was the timing of his enrolment in the Certificate IV in Commercial Cookery and Diploma of Hospitality Management, which he obtained following the NOICC issued by the Department. The applicant gave evidence that he had intended to obtain a CoE in 2020, but his mother’s condition worsened, and after this his parents contracted COVID. He stated that whenever he had an opportunity to obtain a CoE, something else happened which meant he did not have enough funds for a CoE. He stated that in December 2020 his father commenced the process of selling land in their village to make funds available for his course fees, however this process was not finalised until 2021.

24. The applicant also gave evidence that around July 2019 he stopped working and he did not start work again until three to four months before the hearing. He stated that he had been working in hospitality and many businesses were shut due to the COVID-19 pandemic. He stated that he only started to work again in March 2022 when he obtained work rights. He claimed that he withdrew during the COVID-19 pandemic and rarely went out or interacted with others.

25. Having considered the evidence as a whole, I am satisfied that the applicant’s purpose for remaining in Australia remains for the purpose of study. There is insufficient evidence to suggest that the applicant wishes to remain in Australia for other reasons, such as employment. I note that the applicant performed well as a student prior to the cancellation of the Bachelor of Professional Accounting for non-payment of fees, and that he had completed the requirements for all of the vocational courses he had been enrolled in up until that point. The applicant has also given a reasonable explanation for why he now wishes to study his current courses in Commercial Cookery and Hospitality Management. I am satisfied that the applicant continues to have a compelling reason for remaining in Australia and I give this weight against cancelling the visa.

    The extent of compliance with visa conditions

26. The applicant conceded at the hearing that he did not comply with condition 8202 of his Student visa by not maintaining enrolment in a registered course of study from 8 July 2019 to 22 February 2022, the date of the delegate’s decision. The Tribunal put to the applicant that this is a period of over 30 months, which is a significant length of time and a significant breach. The applicant conceded that he recognised this was a significant breach, however he claimed that he did not intend to do anything wrong. He stated that his intention was not merely to remain in Australia without studying, and that the situation was beyond his control. He claimed that his intention was to complete his courses and then return to Nepal as he is an only child, however the circumstances forced him to remain in Australia and he attempted to fix them.

27. The applicant gave evidence that he has not breached any other conditions of his visas, including complying with work conditions. He claims that he now has sufficient funds to support his stay in Australia, including evidence of a bank balance.

28. I consider the length of the breach to be very significant, and one which would in other circumstances attract weight in favour of the cancellation of the visa. However, in the current circumstances the applicant has given evidence of his desire to meet the conditions of his Student visa, including the enrolment requirement. I therefore give this consideration some weight in favour of cancelling the visa.

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

29. The applicant gave evidence that he is an only child and his parents have invested financially in him obtaining an education. He claimed that if he does not complete his studies it will be devastating and shameful for his parents. The Tribunal put to the applicant that he has completed a Certificate IV and a Diploma course in Australia, however he claimed that this level of qualification would not be sufficient for obtaining suitable employment in Nepal. He claimed that with a Diploma of Hospitality Management he could commence his own business, rather than relying on someone to hire him as an accountant.

30. I accept that the cancellation would create hardship for the applicant, including difficulties in him pursuing his chosen career path in the hospitality industry. I also accept that the cancellation would create hardship for the applicant’s parents, who have invested significant sums in his education, including the recent sale of property to fund his studies. I give this consideration some weight against cancelling the visa.

    The circumstances in which the ground of cancellation arose

31. The applicant gave evidence that his mother started to become unwell in 2018. She was initially treated by a GP, but later on she was diagnosed with non-carcinogenic uterine fibroids, which spread to other parts of her body and caused pain and other issues, including spreading to her spinal cord. He stated that his parents were his primary source of support for paying his fees, but his mother was unable to work after this and her medical expenses also needed to be met. His father also suffered job loss during the COVID-19 pandemic and did not return to work until the end of 2021.

32. The Tribunal put to the applicant that his CoE was cancelled in July 2019, over 6 months prior to closures resulting from the COVID-19 pandemic and questioned why the applicant had not returned to Nepal, rather than remain in Australia in breach of the enrolment condition. The applicant responded that he was planning to return to studies and was waiting for the situation to improve with his parents, however after some time both his mother and father contracted COVID. He was unable to return to Nepal during the COVID-19 pandemic and his parents insisted that he remain in Australia due to safety concerns in Nepal.

33. The applicant also gave evidence that he did not receive the assistance he expected from his college. He stated that when he explained his situation to the college, he expected the college to respond with a helpful solution, but instead insisted that he pay all of his fees, otherwise his CoE would be cancelled. He claimed that he sought to defer his studies for a semester, but he did not receive a response from the college. He claimed that he told the college about his mental state at the time, both verbally and in writing. He entered a payment plan with the college when he first enrolled in the Bachelor of Professional Accounting as he knew his mother was sick and such a plan might assist. He stated that he paid the first instalment, but after this his father could not send more money.

34. The applicant has provided the Tribunal with documentary evidence of his communication with Holmes Institute prior the cancellation of his CoE on 8 July 2019. This includes emails sent by the applicant to his college in May and July 2019, in which he advises his college that his mother is suffering from a spinal injury which requires hospital treatment, that he is suffering ‘great mental pressure’ and requires a few days to finalise the payment of fees, and in which he offers to send copies of his mother’s medical reports. The applicant has provided response emails from his college, which indicate that the applicant had chosen a payment plan and there were no options open to him, other than finalisation of the payment of course fees, otherwise his CoE would be cancelled. In a further email, dated 4 July 2019, the applicant questions whether it was possible for him to re-enrol in the following semester if he made a full payment, however no response to this email has been provided to the Tribunal.

35. I note that it is a requirement of the Student visa that students have access to sufficient funds to support their stay in Australia. I also note that the stated reason for the cancellation of the applicant’s CoE in July 2019 is because of the non-payment of fees. I note also that the applicant had been aware of his mother’s condition in 2018 and of the potential for his family to have difficulties in paying for his studies, which is why he entered a payment plan with his college. I note also that the applicant breached this payment plan after only one payment. These would all ordinarily be strong reasons for giving weight to this factor in favour of cancelling the visa. I note however that the applicant has provided medical evidence of his mother’s condition, which is consistent with his claim that she had a medical condition in 2018 which worsened in mid-2019.

1. The applicant gave evidence that he sought advice and assistance from his college, including a request for deferral of his studies. While the applicant’s requests for assistance to his college came after the college had sent him a notice of intention to cancel his enrolment, I accept that the applicant did attempt to address the notice of breach from his college, including offering to pay full fees for the following semester. The applicant claims that he did not receive any response to this last offer. Given the evidence of communication with his college, including the nature of the responses from the college, I am prepared to accept that this was the case. I consider there is sufficient evidence that the breach occurred because of the applicant’s mother’s medical condition and the consequent medical costs, and that the applicant did seek advice from his college about his options, including seeking deferral of his studies for a semester, but did not receive advice about options which would have enabled him to remedy the situation. I find that the applicant appraised his college of his mother’s medical condition and of the stress which he was undergoing at the time, but further details were not sought by his college, and the college did not take these circumstances into account in its decision to cancel the applicant’s CoE.

2. I continue to have some concerns about the length of the breach, including the applicant’s failure to obtain a current CoE for a period of over 30 months, and have factored this into the weighting I give to this consideration. I have however also considered the applicant’s evidence that he felt trapped and unable to leave Australia during the COVID-19 pandemic, and his intention to stay to fix his enrolment situation. I also note that at the time the applicant was aged only 21 or 22 at the time that his mother became ill, and was therefore relatively young, and this may have contributed to his confused state and the delays in obtaining another CoE. Overall, I give this consideration some weight against cancelling the visa.

   Past and present behaviour of the visa holder towards the department

3. The applicant did not present any arguments about this consideration. He responded to the NOICC issued by the Department. I am satisfied that the applicant has behaved in a constructive manner with the Department. I give this consideration some weight against cancelling the visa.

   Whether there would be consequential cancellations under s.140

4. The applicant confirmed at the hearing that there are no persons in Australia whose visas would, or may, be cancelled under s.140 of the Act. The Tribunal weighs this factor neither in favour nor against cancelling the applicant’s visa.

   Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

5. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189 of the Act, however it notes that he could apply for a Bridging visa in order to settle his affairs in Australia. The applicant would need to seek advice regarding his immigration status. The Tribunal is mindful that a visa cancellation could mean the applicant might face difficulties in being granted further visas in Australia, and that he could also be subject to a three-year exclusion period unless he meets relevant Public Interest Criterion.

6. The applicant did not present any arguments in relation to this consideration. I give this condition no weight for or against cancelling the visa.

   Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation

7. There is no evidence that the applicant has any children. The Tribunal weighs this factor neither in favour nor against cancelling the visa.

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

8. The Student visa is a temporary visa and this consideration is not applicable.

   Any other relevant matters

9. The applicant stated that there were no other relevant matters for the Tribunal to consider. He confirmed that he had no other comments about the delegate’s decision. The Tribunal weighs this neither in favour nor against cancelling the visa.

   Weighing the considerations as a whole

10. The applicant has presented compelling reasons for remaining in Australia to complete his studies as well as provided evidence that he sought a deferral of his studies immediately before his CoE. I have also given weight to the hardship he would experience if the visa is cancelled.

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

    DECISION

12. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

    Frank Russo
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)      The holder must be enrolled in a full time course of study or training if the holder is:

    (a)a Defence student; or

    (b)     a Foreign Affairs student; or

    (c)      a secondary exchange student.

    (2) A holder not covered by subclause (1):

    (a)      must be enrolled in a full time registered course; and

    (b)      subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

    (c)      must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

    (i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

    (ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

    (3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

    (a)     is enrolled in a course at the Australian Qualifications Framework level 10; and

    (b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.