Parajuli (Migration)
[2020] AATA 3272
•17 June 2020
Parajuli (Migration) [2020] AATA 3272 (17 June 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Biraj Parajuli
CASE NUMBER: 1932554
HOME AFFAIRS REFERENCE(S): BCC2017/1184875
MEMBER:Vanessa Plain
DATE:17 June 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 500 (Student) visa.
Statement made on 17 June 2020 at 3:56pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a higher level course ceased – course cancelled due to late payment of fees – further cancellation after re-enrolment – applicant changed to vocational course – family medical and financial hardship – decision under review set aside
LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8, Condition 8202STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision dated 11 November 2019 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 (the Act).
The delegate cancelled the visa on the basis that the applicant failed to maintain enrolment in a registered course that once completed, would provide a qualification from the Australia Qualifications Framework (AQF) that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted.
The applicant appeared before the Tribunal on 15 June 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.
The applicant was represented in relation to the review by his registered migration agent.
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
The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202(2)(b) 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?
Condition 8202 provides as follows:
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
[...]
(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.Paragraph (2)(b) states the visa holder must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework (AQF) that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted.
The applicant’s visa was granted on 8 July 2017 for the purpose of studying a Bachelor of Nursing at Western Sydney University which is an AQF level 7 course.
Information available to the Department in the Provider Registration and International Student Management System (PRISMS) indicated that on 5 October 2017, the applicant’s enrolment in his course was cancelled, however, this was due to late payment of fees. He re-enrolled in the same course at the same institution and commended study again on 18 October 2017. However, their enrolment in the course was canceled on 24 September 2018, and the education provider cited ‘Student notifies Cessation of Studies.’
PRISMS indicated that the highest CoE the applicant held thereafter was for a Diploma of Leadership and Management course which he commenced on 24 January 2019 at Frontier Leadership Pty Ltd. This enrolment is at AQF Level 5.
As the applicant was not enrolled in a course at the AQF Level 9 (Masters Degree) or Level 10 (Doctoral Degree), the circumstances of clause 8202(3) do not apply to them.
On 4 October 2019, a Notice of Intention to Consider Cancellation of Visa (NOICC) was sent to the applicant.
By written response dated 18 October 2019, the applicant responded to the NOICC and agreed that there are grounds for cancellation. The applicant provided reasons to the Department for the breach of the visa condition, as summarized by the Delegate, as follows:
‘His mother fell ill and as a result of medical expenses his family struggled to meet his tuition fees. His mother’s ongoing ill health continued to impact his family’s ability to meet his tuition fees.
‘He has experienced depression and sought medical advice to address this health concern’
‘He was unable to meet the fees of major universities and also wished to avoid big cities to assist his well being.’
‘His intention is to finish his studies.’
‘He has always ‘been loyal to the Australian immigration apart from this case’.
‘He does not intend to stay in Australia forever.’
‘He apologies for his actions of non compliance.’
‘He wants to finish his course of study due to his parents’ concern.’
At the hearing on 15 June 2020, the applicant candidly admitted they breached their visa condition and acknowledged that he was aware of the visa condition. The applicant gave evidence that was consistent with the reasons they gave to the Department in their response to the NOICC.
The applicant’s evidence may be summarized as follows:
·He has been suffering from depression over a sustained period of 1 to 2 years.
·Due to his medical condition, he found focusing on his nursing studies incredibly challenging, daily activities and leaving his premises became a chore;
·He was so afflicted he returned home briefly to seek familial support, as he was experiencing anxiety and panic attacks.
·He returned to Australia and his symptoms became worse, likely due to the stress his family were under at the time of his return visit to his home country.
·He struggled to complete his nursing assignments. He discussed his difficulty with his education provider.
·His panic attacks and depression became more severe and his notified his education provider that he could no longer continue with his studies at this time. The education provider cancelled his enrolment shortly after he notified them he could not continue his studies.
·He was referred to a psychiatrist for assessment shortly prior to the cancellation of his enrolment, on account of the symptoms he described to his local doctor at the time.
·He was prescribed various medication by the clinical psychiatrist which he continues to take.
·His mental state deteriorated in late 2018 and he conferred again with his psychiatrist in early 2019, describing symptoms of panic, isolation and anxiety.
·In early to mid 2019 he started to feel less anxious, because he had moved from Sydney to Hobart and found the quieter city life was less stressful in Tasmania. He developed a support network in Hobart and resumed leaving his house and engaging with people.
·He did not feel as though he was up to re-commencing studies at a Bachelor level, the did not want to place himself under pressure at his point in his recovery and so he decided to enrol in a Diploma of Leadership and Management.
·He knew that it was in breach of his visa condition to study at the lower level, but he thought it was very important that he started studying again as soon as he felt able, rather than continue to be not enrolled in a registered course. He was very conscious in not setting himself up for a relapse into anxiety and panic attacks, by undertaking a course he simply didn’t feel he was capable of undertaking successfully at that particular time.
·He very much wishes to return to his family, as he is the eldest son in his family. He wishes to complete his Diploma, which he has undertaken entirely successfully to date and only has to complete a few more subjects before he graduates.
The applicant submitted a report from Dr Ghana Chapagain, consultant psychiatrist. That report clearly sets out that the applicant was diagnosed with clinical depression and anxiety related disorders for which he was prescribed a raft of medication.
It is clear that the applicant’s diagnosis coincides with the time his enrolment was cancelled. It is clear he was receiving treatment at the outset of 2019 and upon seeing an improvement in his health, he responsibly started studying again and by all accounts, has been attending classes and progressing academically. These are the characteristics of a responsible and diligent student.
Based on the above, the Tribunal finds that the applicant has not complied with subclause (2)(b) of condition 8202 as he has not maintained enrolment in a registered course at the same level as, or higher level than, the registered course in relation to which his visa was granted.
Consideration of the discretion to cancel the visa
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’.
It is clear based upon the matters the Tribunal has set out above, that there are compassionate and/or compelling reasons for the breach of the visa condition in these circumstances. The Tribunal places significant weight on the candid and frank evidence of the applicant, which the Tribunal finds wholly consistent with the medical evidence submitted in support of the application. The applicant’s evidence has not been embellished with the benefit of hindsight, he frankly acknowledged and accepted that his conduct was in breach of his visa condition, but on account of his health, he simply was not of the mindset to contact the department and change his visa to a vocational level.
The Tribunal accepts that explanation as wholly reasonable and plausible in these particular circumstances.
On the basis of the above matters, the Tribunal finds that there are compassionate or compelling reasons for the breach of the visa condition in this case, on account of a diagnosed mental health disorder as diagnosed and treated by a psychiatrist at the actual time of the breach in question.
The Tribunal affords this significant weight in favor of not cancelling the visa.
It is clear that the applicant’s visa was granted for the purpose of him studying a Bachelor of Nursing, which purpose ceased in September 2018, whoever, in view of the above matters, the Tribunal affords this no weight in favor of cancelling the visa for this consideration.
The applicant has not maintained enrolment in a registered course at the same level as, or higher level than, the registered course in relation to which his visa was granted, resulting in non-compliance with subclause (2)(b) of condition 8202.
There is no evidence before the Tribunal to indicate that the applicant has not complied with further conditions attached to the visa and given that the Tribunal has found that there were compassionate and/or compelling reasons for the breach of the visa in this case, the Tribunal affords this factor no weight in favour of cancelling the visa.
On account of the above matters, the Tribunal considers that the psychological and mental hardship the applicant would suffer if his visa were to remain cancelled would be grossly unfair in these circumstances and it afford this consideration significant weight in favour of not cancelling the visa.
The applicant responded promptly to the NOICC and there is no evidence before the Tribunal to suggest that the applicant has been uncooperative with the Department or departmental staff. The Tribunal gives this consideration a little weight against cancelling the visa.
The circumstances of this case are not such that any person’s visa would be consequentially cancelled under s140 of the Act. The Tribunal therefore does not give this factor any weight for or against a decision to cancel the visa for this consideration.
If the visa is cancelled, the applicant will become an unlawful non-citizen and may be liable for detention under section 189 and removal under section 198 of the Act if she does not voluntarily depart Australia. The applicant would also be affected by section 48 of the Act, which may prevent her from applying for certain visas while in Australia, and Public Interest Criterion 4013, which may exclude her from being granted a visa for a specific period of time in the future.
These are mandatory and intended consequences of the legislation, however, given that the Tribunal has found that the circumstances leading to the breach were beyond the control of the applicant, the Tribunal finds that these consequences would be manifestly unfair in the circumstances and the Tribunal therefore gives this consideration weight against cancelling the visa.
Australia’s international obligations
There is no evidence before the Tribunal to indicate the applicant has children in Australia, nor whether cancelling the visa would lead to a breach of Australia’s non-refoulement obligations. As there is no information before the Tribunal, the Tribunal does not give any weight for or against cancelling the visa for this consideration.
Any other relevant matters
The Tribunal has no further evidence before it of any other relevant matters.
It is clear that the considerations I have arrived at, on examining and weighing all the evidence before me, lean towards the visa not being cancelled and I so find.
Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.
Vanessa Plain
MemberATTACHMENT
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.
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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Appeal
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