Pariyar (Migration)

[2024] AATA 2104

Pariyar (Migration) [2024] AATA 2104 (17 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Prajwol Pariyar

REPRESENTATIVE:  Mr Deepak Kumar Agrawal (MARN: 1464159)

CASE NUMBER:  2218361

HOME AFFAIRS REFERENCE(S):          BCC2022/3905249

MEMBER:Michael Bradford

DATE AND TIME OF

ORAL DECISION AND REASONS:         17 May 2024 at 9.57 am (NSW time)

DATE OF WRITTEN RECORD:                11 June 2024

PLACE OF DECISION:  Sydney

Statement made on 11 June 2024 at 12:48pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered course – applicant ceased enrolment – late course completion – family bereavement – applicant changed courses – genuine interest in pursuing a career in hospitality – decision under review set aside

LEGISLATION

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

APPLICATION FOR REVIEW

Introduction

1. This is an application to review a decision made of a delegate of the Minister for Home Affairs who, on 7 December 2022, cancelled the applicant’s Subclass 500 Student (Temporary) (Class TU) visa under the Migration Act 1958 (the Act).

2. At the hearing on 17 May 2024, although not without some hesitation, I made an oral decision to set aside the delegate’s decision and gave oral reasons for it.

3. More recently the Department of Home Affairs have requested that a written record of those reasons be provided.

4. What follows is that record.

   STATEMENT OF REASONS

   Preliminary aspects

5. The delegate cancelled the visa under Sec 116(1)(v) of the Act for breach of the enrolment condition. There is no issue on the review that the applicant has been in breach of that condition, nor is there any issue that the breach afforded to the delegate a ground on which to cancel his visa.

6. There are thus two issues which I need address. The first relates to the extent of the breach and the second is whether, in the light of that and other circumstances, his visa should be cancelled.

7. The review application was filed on 13 December 2022 and is therefore within time. 

   Procedural aspects, the adjournment of the hearing and certain documentary aspects

8. Of initial concern to me in this review was the complete and unexplained absence of a documentary case. The initial hearing invitation, which was sent to the applicant on 15 March this year, was duly accepted but the applicant indicated in his acceptance form that he did not intend to rely on any documents at the hearing.

9. This was the position when the case came before me initially for a video hearing on 24 April of this year. The applicant gave his oral evidence in English. He obviously has a reasonably good understanding of spoken English. Also in attendance at that hearing was his representative, Mr Deepak Agrawal.

10. During the applicant’s oral evidence, I expressed concerns to Mr Agrawal about the lack of a documentary case. His response was that the applicant was relying on the documents which he had provided to the delegate in response to the NOICC.

11. As I said to Mt Agrawal at the time, there was nothing in the acceptance form to indicate that is what he was proposing to do and, indeed, what he had stated in that form about not relying on any documents was quite to the contrary.

12. More particularly, there were other concerns arising from the applicant’s oral evidence regarding his IT course at AHIC. He indicated to me that he did not complete that course on time, and in fact did not complete it until February 2022, some five or six months after the date on which it was due to be completed. The PRISMS record, which I have seen, contains details to the effect that he finished the course on time in August 2021.

13. Obviously, in a case such as this one, when exactly he completed that course raised an important issue because it would have a bearing on the extent of the breach, a fact which Mr Agrawal accepted in his oral submissions.

14. There were other aspects of the applicant’s oral evidence about which I had initial concerns. For example, I had no documentary evidence to indicate whether he made any progress in the Certificate IV in Kitchen Management at Rockford (the CIV). The documentary evidence he provided to the delegate included COE’s for a package of Hospitality courses at Rockford, including the CIV, courses which he enrolled in on 24 November 2022, shortly after he was served with the NOICC. The applicant told me at the initial hearing that he had made some progress in the CIV, saying that he had completed 2 or 3 units in the course, but I had no interim transcript from the provider to corroborate him in this regard.

15. I informed the applicant, as I was bound to do, that if I was to rely on the information in the PRISMS record in preference to his oral evidence this could be a reason, or part of it, for affirming the delegate’s decision.

16. As a result of this and other exchanges with the applicant Mr Agrawal sought an adjournment to enable him to provide documentary evidence to address these concerns.  Although I was reluctant to accede to that application for reasons which I think I expressed at the time, I eventually went along with it and made directions which gave the applicant the opportunity of providing additional documentary material. Consequently, the case was adjourned, and directions made to enable the applicant to do that within a period of 7 days.

17. A short time after the initial hearing, the Tribunal sent to the applicant, via Mr Agrawal, a letter which confirmed the directions. Mr Agrawal sought additional time in which to provide the documents. That application was also granted, and the additional documentary material was ultimately filed on 8 May of this year.

18. Among the additional material ultimately provided is correspondence which clearly establishes that the applicant did not in fact complete the IT course at AHIC until about mid- February 2022 as he was still in the process of submitting assignments, with Rockford’s consent, at about that time. There is also a transcript from Rockford which corroborates his oral evidence that he had, in fact, completed 2 units in the CIV before his enrolments in that package were cancelled because of the eventual cancellation of his visa.

19. The case came back for a further hearing today, 17 May. The applicant has given some additional oral evidence in support of his case and Mr Agrawal has made some additional submissions.

    An overview of the review case

20. The material before the delegate essentially consisted of Mr Agarwal’s written submission dated 1 December 2022 and the other documents which he provided in support of it. Put shortly, Mr Agrawal acknowledged in his response submission that the applicant had been in breach of condition 8202 for a period of about 6 months.

21. He went on to say in his submission that there were exceptional circumstances beyond the applicant’s control which should be considered when deciding whether to cancel the applicant’s visa. In particular, he refers to the difficulties which the applicant was having with his studies in the IT course in late 2021. He went on to suggest that the applicant did not complete those studies until late March 2022, which is the date on which the completion certificate for that course was issued. As I indicated to him at the initial hearing, the date on which the certificate of completion for that course was issued cannot ordinarily be taken as corroboration of the date on which it was completed and the more recent documentation which the applicant has provided reinforces my view about that.

22. But, in any event, Mr Agrawal went on his submissions to indicate to the delegate that there were other important factors which should be considered including the fact that the applicant had lost his grandmother when she passed away in Nepal on 21 March 2022. This, according to the submission, had a very strong impact on him. He gave oral evidence at the initial hearing to the effect that he wanted to go back to Nepal to attend her funeral, but his parents convinced him not to do so. The Movements Details record confirms that there was no return visit to Nepal in about March 2022 for that purpose and I am inclined to accept the applicant’s explanation for this.

23. I should add that today the applicant told me that he had lived with his grandmother since his birth in a house which she owned in Nepal, and in which his parents also lived, and that his grandmother has left her house to them under her will. I accept this evidence, it appears to me that the applicant was indeed close to his grandmother, and indeed that she is likely to have assisted in his upbringing. This is not unusual in a country such as Nepal where grandparents often live with their children and grandchildren.

24. I also accept that his parents convinced him not to return to Nepal to attend her funeral and that this would not have helped him in the grieving process and which, indeed, most probably prolonged it for a period after March 2022.

25. There are other submissions that were made to the delegate, which, having heard what the applicant has said about them, cannot be accepted either because they mis-represent the effect of his evidence, or they are not supported by any credible medical evidence.

26. To take one example, the applicant led evidence to the effect that he enrolled in some short training courses as part of his employment in a bar at Kings Cross as from mid-2022, and later when he found employment in the Kogarah Hotel. Whilst I have no difficulty in accepting that he did enrol in and complete these courses, I am quite unable to accept his assertion that he did not realise they were not registered CRICOS courses. Even if allowances are made for his commercial inexperience, the fact that these courses were completed within a matter of days suggests to me that he must have known they were not registered courses. I do not accept the proposition that the applicant did not know this but, at the end of day, not a lot turns on it. I do not think that his rejected denial has any broader credit implications.

27. In short, what the submissions focus on, correctly in my view, is that when the applicant came out here he was relatively young and inexperienced and that the breach occurred in circumstances where he has at least gone some way towards explaining why he remained unenrolled for a period of approximately 9 months, that is from February 2022 to November of that year, when he procured the enrolments at Rockford.

28. Although not without some hesitation, I accept the essential thrust of his review case that he has made these mistakes because he relied on others and/or because he was relatively young and inexperienced.

    Evidence and other findings

29. In his oral evidence the applicant said that he came out here to study a Bachelor of Business under the visa which was eventually cancelled.  He arrived in November 2019. At that stage, he was almost 19 years of age, having been born in early 2001. He had no commercial experience in Nepal, apparently. He told me, and I accept as plausible, that he enrolled in the Business course at the behest of his father, he (his father) having operated, or at least has an interest in, a home appliance business in Nepal.

30. I can accept that in these circumstances his father probably did influence him to enrol in the Business course, a course which he either found too difficult or had no interest in. His enrolment in this course was cancelled in September 2020 by which time he had made no progress, apparently.

31. By that stage he had enrolled in, and had commenced studies in, the IT Networking course at AHIC in August 2020. PRISMS confirms his evidence on this aspect.

32. As noted earlier, he found work in a bar at Kings Cross in about mid-2022, left that job and began work as a barman and kitchen hand at the Kogarah Hotel in about October 2022.  I accept his evidence on these aspects. 

33. The delegate in the NOICC relied on PRISMS as indicating that the applicant had not been enrolled in a registered course of study since 16 August 2021, that being the date on which, according to PRISMS, the applicant had completed the IT course.

34. Given that I am satisfied on the contemporaneous documentary evidence that the applicant did not complete that course until February 2022 the relevant non-enrolment period is confined to about 9 months until November 2022 when, in response to the NOICC, he enrolled in the Hospitality package at Rockford.

35. The evidence also establishes that his grandmother passed away on 21 March 2022 and that he went on to complete the alcohol and gaming courses in September and October of that year. Having received an email from the Department in early November 2022 regarding his visa, he responded to it promptly by providing his contact details and by engaging Mr Agrawal to respond to the NOICC for him. Mr Agrawal responded initially by seeking additional time, which was granted, during which applicant enrolled in the courses at Rockford.

36. It is significant in this case that, by the time the applicant enrolled in those two courses, the CIV and the Diploma of Hospitality Management, he had been working in the hospitality field for about 5 or 6 months initially in the bar at Kings Cross and later at the Kogarah Hotel.  Moreover, he also told me, and I accept, that he is still employed in the kitchen at that Hotel. He does have, therefore, an established work history in this field.

37. Returning to the narrative, as I said, Mr Agrawal responded to the NOICC with his submission and by the provision of these other documents, namely the completion certificates for these training courses, the COEs for the two courses at Rockford, which, as I say, were generated on 24 November 2022, about a week after the NOICC was served, a certificate for the completion of the IT course at AHIC, and a death certificate relating to his grandmother. 

38. As I have said in many other cases, the Tribunal does not ordinarily act on uncorroborated and self-serving assertions from applicants about the psychological effects on them of events, particularly if those events are said to have compromised a capacity for productive study. As a rule, credible medical evidence to this effect is required.

39. That said, there are cases, and this I think is one of them, where the Tribunal can safely act on uncorroborated assertions where, for example, what is alleged sits well with the objective features of the case. If, as in this case, an applicant can point to events which would likely have impacted his decision-making abilities, or at least an ability to function effectively, for a period after March 2022, that does go some way towards explaining his 9-month non-enrolment period.

40. I am not suggesting that in this case one could make an allowance for the whole of that period on that basis alone, but it does seem to me that some allowance should be made for it. Doing the best, and although it is rather arbitrary, it seems to me that the loss of his grandmother would have impacted on him for, say, a period of 3 months after March 2022.  To that extent, I do think the non-enrolment period has been adequately explained and that consequently we are dealing with a period of about 5 or 6 months, from about June 2022 to November of that year, which has not been adequately explained.

41. A 6-month period of non-enrolment, and a consequent breach of a fundamental and mandatory condition, cannot be described as insignificant but one has to look at it in the context of his overall circumstances, including his relatively young age, the fact that he came out here to study a business course under the influence of his parents, a course which led to nothing, the fact that he selected an IT course to continue with his studies, which also has led to nothing of any real value. He frankly told me that the decision to enrol in the IT course was his own decision, but I do not regard it to have been a fully informed one.

42. There is some suggestion in the evidence that he had the assistance of an education agent at the time, but I do not place any significance on this. With the benefit of hindsight, his enrolment in the IT course was clearly a mistake but it was not an unreasonable one in these circumstances given his relative inexperience and the fact that he would naturally rely on others and on what he was advised by them to do.

43. Moreover, he did study the IT course during COVID, it may not have been particularly demanding, but he did persevere with it in circumstances where he had little if any interest in it.

44. Nor do I regard his decision to enrol in the courses at Rockford to be purely strategic. True it is that these took place about a week after he was served with the NOICC, they were thus clearly reactionary and no doubt intended to reinforce his position before the delegate, but I am not convinced that they were designed only, or even primarily, to enable him to remain here for reasons unrelated to productive study, and academic progress for legitimate occupational reasons.

45. I say that mainly because of his demonstrated work history in this field, a history which suggests to me that he has a genuine interest in pursuing a career in the hospitality sector in Nepal once he completes his study here. As already noted, by the time he enrolled in these two courses at Rockford, he had been working in the sector for some considerable time, that is for about 6 months.

46. He told me today, and again I accept his evidence on this, that his plan is to complete these two courses at Rockford, gain additional work experience in the process and return to Nepal to pursue a career in that field. I do regard this to be a plausible and realistic plan given his broader circumstances. I do not think his enrolment in these courses was purely for strategic reasons, or that he has an ulterior motive in wanting to undertake them.

47. When the delegate decided to cancel the visa his enrolments at Rockford were also cancelled, I think on 31 March 2023. By that stage, he had been granted two bridging visas, but the Movements Details record confirms that each of them had been granted on condition that he did not engage in study.

48. I am satisfied based on the additional documentary evidence that he did make some progress in the CIV at Rockford in November and December of that year before the study prohibitions came into effect. He would most probably have been unable to make any further progress given the sequence of events which then took place.

49. When looking at the factors I am required to consider there is no issue in this case there are grounds on which to cancel the visa. On my findings there is a non-enrolment period here of about 9 months, 3 of which have been adequately explained by reference to the death of his grandmother.

50. Although the remaining portion of the breach, a period of about 6 months, is significant I am prepared to infer, for the reasons earlier given, that there were other things operating on this applicant during that period which go a long way towards ameliorating the effect of this breach. 

51. The gravamen of Mr Agrawal’s submission on this aspect is that the applicant was a victim of his own circumstances, and that he lost his way because of them, a submission which, I think, is supported by the evidence.

52. I accept that the applicant’s belated completion of the IT course during the height of COVID reflects well on him, particularly given he was not really interested in pursuing a career in that field. His enrolment in this course was a mistake but it was not an unreasonable one and allowances can and should be made for it. Not to do so would mean that the applicant will be going home without any useful qualifications in a field in which he has a genuine interest.

53. I have read that the delegate’s finding about the purpose for which the applicant has remained here but, on the evidence, I am not prepared to infer that the reason for him wanting to remain in Australia is no longer in line with the purposes for which his student visa was granted. Based on his oral evidence I am prepared to find that he is indeed a genuine student who lost his way for a relatively short time but who wants to remain here temporarily for legitimate academic reasons.

1. I thus cannot agree with the delegate’s finding that this case involves an unexplained breach of something in the order of 15 months. On my findings it is at worst a period of about 6 months and even that can be explained adequately enough by reference to his broader personal circumstances.

2. Further, cancellation in this case would involve a considerable hardship to the applicant and his family. I agree with Mr Agrawal’s submission that not inconsiderable resources have been invested in his education here, most probably by persons who do not have deep pockets and who would likely be very disappointed if the applicant had to return home at this stage relevantly empty-handed. I take these matters into account in his favour and, indeed, regard them to be weighty factors against cancellation in this case. The applicant’s father, in particular, would likely be embarrassed by that outcome given the role he played in selecting for the applicant an inappropriate higher-level course.

3. Insofar as the circumstances are concerned, it is true, as the delegate said in his decision, that the applicant should have taken other options by either going back to the department and explaining his personal issues or by seeking competent advice from other persons in relation to them. He does not appear to have done so. Nor was he pointed in the right direction when he chose to study the IT course but, on my findings, these are things which are not likely to have occurred to him.

4. There is nothing in his past or present behaviour towards the department, there is no evidence before me to suggest that he has been in any way non-compliant with any other conditions, either under his student visa or later under his bridging visas.

5. The other matters have been considered by the delegate and I broadly agree with the weight which he attributed to them. They are of course relatively peripheral.

   Summary and conclusion

6. Overall, this case involves a relatively young and inexperienced student who appears to have been thrown into the deep end by his parents. He struggled for a time, endeavoured to get his studies back on track when he enrolled in the IT course, but this too was a mistake and has led to nothing of any real use to him. He completed the course, to his credit, during COVID although he was understandably late in so doing. Ultimately, he found his niche in the hospitality sector, belatedly enrolled in the courses at Rockford mainly because he now wants to pursue a career in that field. I accept his oral evidence that he has a genuine interest in doing so as the objective features suggest as much.

7. I am thus inclined to give the applicant another chance to make good the mistakes of the past, many of which were either not his doing or which have otherwise been explained adequately enough, and to undertake studies in a field in which has a demonstrated interest and which is likely to yield useful qualifications.  

8. Although not without some hesitation, and while acknowledging that this case is, in some respects, on the borderline I have formed the view that, on balance, his visa should not be cancelled.

9. The appropriate course is thus to set aside the delegate’s decision and to substitute, for that decision, a decision not to cancel his visa.

   DECISION

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

    Michael Bradford
    Member