Pokhrel (Migration)

[2018] AATA 5096

Pokhrel (Migration) [2018] AATA 5096 (16 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sanjeep Pokhrel

CASE NUMBER:  1618275

DIBP REFERENCE(S):  BCC2016/2970994

MEMBER:Mr S Norman

DATE:16 August 2018

PLACE OF DECISION:  Sydney

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 16 August 2018 at 12:50pm

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector visa – not enrolled in a registered course of study – breach of condition 8202 – mild level of psychological distress – strong evidence provided to demonstrate adequate study progress – Decision set aside and substitute a decision not to cancel the visa

LEGISLATION
Migration Act 1958, ss 48, 116, 189, 198, 359
Migration Regulations 1994, Schedule 8, cls 573.111, 573.112, 573.223, 573.231

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 2 November 2016 made by a delegate of the Minister for Immigration 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 breached condition 8202(2)(a) – enrolment. 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 5 July 2018 to give evidence and present arguments.

4. 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

5. 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?

6. 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).

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

8. The applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 8 November 2013. By Notice of Intention to Consider Cancellation (NOICC) of that visa dated 4 October 2016, the applicant was advised that information on the Provider Registration and International Student Management System (PRISMS) indicated he had not been enrolled in registered course of study since 10 September 2015. The applicant was advised it appeared he was in breach of condition 8202(2)(a) – and that his visa may be cancelled under s.116(1)(b) of the Act.

9. The applicant responded to the NOICC letter but he did not dispute there were grounds for cancelling the visa – though he did provide reasons why the visa should not be cancelled (discussed below). At hearing, the applicant also conceded he had failed to maintain enrolment in a registered course of study for around 11 months.

10. On the evidence before the Tribunal, 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

11. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3).

12. Regarding the applicant’s purpose in travelling to and residing in Australia, in his Student visa application he advised he wished to study in Australia. He arrived in Australia on 11 December 2013 on a streamlined subclass 573 Student visa. He subsequently withdrew from the COE attached to his visa grant with the University of the Sunshine Coast and he obtained a refund on 4 February 2014. He then commenced a Bachelor of Professional Accounting at the Holmes Institute on 17 March 2014. This enrolment was then subsequently cancelled on 26 August 2014. The applicant then obtained enrolment in a Certificate IV in Commercial Cookery through the same education provider on 9 October 2014. On 10 September 2015 this enrolment was cancelled, and so was the Bachelor of Business attached to the applicant’s study pathway.

13. The applicant was issued a NOICC letter on 4 October 2016. He subsequently requested and was granted an extension of time. Shortly before the extension of time ceased he advised the Department he had obtained two COE’s from Holmes Institute - being a Certificate IV in Commercial Cookery, and a Bachelor of Business. These were provided after he received the NOICC letter.

14. In his response to the NOICC letter, and by statement of 5 April 2018,[1] the applicant said he had completed a Certificate IV Commercial Cookery Course; that the Nepal earthquake caused him to cease studying; he was stressed; he could not pay for his studies as his parents’ business suffered due to the earthquake; and he materially repeated other matters discussed herein.

    [1] Tribunal – from folio 47.

15. At hearing, the applicant explained that he did not like the course at the University of the Sunshine Coast (in part due to him being alone and away from his home) and had moved to Sydney to study accounting. However, he found this too difficult and not what he wished to pursue. Shortly after withdrawing from this course on 26 August 2014, he commenced to study a Certificate IV in Commercial Cookery – and he explained that he was working in a restaurant kitchen in Sydney and was encouraged to do so by co-workers. However, shortly after that his parents were adversely impacted by the Nepal earthquake (April 2015), and he learnt of the motor cycle accident of his older brother (July 2015). The brother had been hospitalised for one month and was then subject to bed rest for eight months. After discussing same, and based on the evidence (referred to herein), the Tribunal accepts this is correct.

16. That being said, the Tribunal is satisfied the applicant’s intention in travelling to and residing in Australia, was for the purposes of study.

17. Next, and regarding the extent of the applicant’s compliance with any conditions to which his was granted, the Tribunal notes that at the time of the NOICC letter, he had not been enrolled in a registered course of study for around 11 months. The Tribunal believes this breach to be substantial.

18. Regarding the degree of hardship that may be caused to the applicant or his family if his visa is cancelled, the Tribunal notes that if his visa is cancelled he would become an unlawful noncitizen and liable to detention under s.189 and removal under s.198 of the Act. Further the Tribunal accepts there may be some financial or other hardship to the applicant or his family if his visa is cancelled. However based on the evidence before the Tribunal, I am not satisfied that he would be subject to indefinite detention, and he could also temporarily retain his Bridging visa in order to remain in the community to finalise his affairs prior to departing Australia.

19. At hearing, the applicant said his parents would be ‘devastated’ should he not complete his studies in Australia. However, he also conceded his parents would (words to the effect) ‘take him back’ should he return to Nepal.

20. Next, the Tribunal also notes that if the applicant’s visa is cancelled he would be subject to s.48 and would have limited options to apply for further visas in Australia. He would also be subject to PIC 4013 (meaning he could not be granted a temporary visa for three years from the date of cancellation).

21. Regarding the circumstances which gave rise to the cancellation of the applicant’s Student visa, some of these have been discussed elsewhere. For instance, he said that in Nepal, his father’s business had badly suffered due to the April 2015 earthquake. He said his parents had been injured in this earthquake. He said his parents were now homeless. He said close relatives had passed away. The delegate noted the applicant had provided evidence that his family home had been partially damaged and that his father’s business had suffered some financial loss. He also provided evidence that his brother was admitted to hospital and underwent surgery for a broken leg. It was claimed this was due to a ‘serious bike accident’.[2]

    [2] See medical report – Tribunal file – folio 40.

22. The applicant also provided an Audit Report from a named poultry farm dated ‘31 Ashad 2073’ (the Tribunal understands this is 15 July 2016). At hearing, the applicant explained this related to his father’s business and that his father was also a full time teacher and part time farmer (the farm contained poultry and cows). That said, no ‘opinion’ was apparent in the Audit Report’;[3] and the evidence from Nepal was that his father’s “2 storey brick house [was only] damaged partially’ due to the April 2015 earthquake.[4]

    [3] Tribunal – from folio 50.

    [4] Tribunal – folio 45.

23. In response to the Tribunal’s s359A letter dated 7 March 2018, the applicant provided a COE from Holmes Institute P/L to study a Bachelor of Business (commencement date 10/7/2017 and completion date 31/12/2019[5]). He also issued a Notification of Results for the Certificate IV in Commercial Cookery (issued 28 March 2018; stating he had passed five subjects but was not yet competent in three subjects he had undertaken[6]).   When discussed at hearing, the applicant conceded he had not successfully completed any course since arriving in Australia in December 2013. However, he said he had already paid to be able to complete the last three units of the above course in order to be granted the Certificate IV in Commercial Cookery.

    [5] Tribunal – folio 52.

    [6] Tribunal – foli 51.

24. Next, the applicant said the incidents to his family had made him feel “mentally disturbed and broken” and that he was “really depressed”. To the Tribunal the applicant lodged an undated Psychologist report.[7] Amongst other things it was stated that the applicant was referred to the psychologist only after he received his NOICC letter; the psychologist then set out in some detail the self-reported psychological history of the applicant; including that this was the first time the applicant had lived away from his home; that he was extremely depressed; that he was devastated by what had occurred his family. The psychologist did report on the applicant’s behaviour at his interview; in that he presented as a quiet, well-groomed young gentleman who was cooperative. However the psychologist also felt the applicant presented with “anxious effect and appeared agitated in composure”. It was also said the applicant’s “thought and speech content appeared normal and that he was well oriented”. After noting the self-reporting of the applicant’s psychological condition, the psychologist referred to the Kessler Psychological Distress Scale. It was claimed the applicant had been noted as having a “mild level of psychological distress”. It was also noted by the psychologist that given the above findings it “appears that his anxiety and depressive symptoms have affected his studies which have manifested as a lack of motivation and interest in his studies” in Australia. It was also noted that when the applicant received letters from the Department, this increased his stress.

    [7] Tribunal – from folio 7; from folio 39. .

25. At hearing, the Tribunal put to the applicant that based on his mental health assessment it may appear he would not be capable of meeting the stresses commonly confronted by persons engaged in tertiary studies. The applicant did not agree and the Tribunal notes the applicant has now successfully completed the first and second semester of a Bachelor of Business degree at Holmes Institute (discussed below).

26. Next, the applicant said he had attempted to engage with student support to find a resolution but found there was no option other than to pay his fees if he wished to continue studying. However, the Tribunal notes the applicant did not seek to re-enrol in a registered course of study until after he had received the NOICC letter. There is also no evidence the applicant made any material efforts to contact the Department to try and regularise his visa status before receiving his NOICC letter.  

27. Next, the Tribunal has no evidence the applicant has been uncooperative with the Department or the Tribunal. The Tribunal has no evidence that any other person’s visa would or may be cancelled by the cancellation of the applicant’s visa. The Tribunal has no evidence that Australia’s international obligations would or may be breached as a result of cancelling the applicant’s visa.

28. Next, the applicant had provided evidence that he had passed the first semester of a Bachelor of Business at Holmes Institute (commencement date10 July 2017). The applicant had only applied for this course after receiving his NOICC letter. At hearing, he said the education provider only agreed to re-enrol him after he had submitted a document explaining why he had failed to continue his studies in 2015. The Tribunal then put to him it may appear he only sought re-enrolment in order to remain in Australia. The applicant did not agree. He said he moved in to live with a cousin in Sydney in July 2016, and that she encouraged him to re-commence his studies. He also said he was intending to remain living with his cousin; and he was considering re-enrolling in an appropriate course prior to receipt of the NOICC letter.

29. Importantly to the Tribunal’s decision, the applicant provided a Notification of Results from Holmes Institute for the first semester of the Bachelor of Business. That showed that in the four subjects he was required to undertake, he obtained a pass, two distinctions, and one high distinction. After agreeing to lodge his results for second semester, the Notification of Results for the second semester[8] showed that in the four subjects he was required to undertake, he obtained a credit in two, a pass in one, and a fail in the fourth. Post hearing enquiries by the Tribunal with his education service provider, indicated that this was correct and the applicant’s ‘progression is adequate’.  

    [8] Tribunal – folio 74.

30. The Tribunal is satisfied this is strong evidence in the applicant’s favour. At hearing, the Tribunal also put to the applicant that if he was provided with a ‘second chance’ on this occasion in order to keep studying in Australia, the consideration of any further possible breach may take this into account and it might adversely impact any subsequent consideration.

31. That being said, and after considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

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

    Mr S Norman
    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.