Poudyal (Migration)

[2019] AATA 4458

Poudyal (Migration) [2019] AATA 4458 (20 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Abishek Poudyal

CASE NUMBER:  1820492

HOME AFFAIRS REFERENCE(S):           BCC2018/1082933

MEMBER:Mark O'Loughlin

DATE:20 September 2019

PLACE OF DECISION:  Adelaide

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 20 September 2019 at 11:45am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 500 (Student) – not enrolled in registered course – deferment obtained – family issues – academic standard – valid COE – enrolled in another course – decision under review set aside   

LEGISLATION

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 9 July 2018 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).

2. The delegate cancelled the visa on the basis that the applicant breached condition 8202(2)(a). 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 19 September 2019 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, relevantly requires that the applicant be enrolled in a full time registered course: 8202(2)(a).

7. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a full time registered course and had not been since 2 August 2017.

8. The applicant gave evidence that he in fact was enrolled at that time.

9. The applicant provided documentation to suggest that there had been some disruption in his study due to illnesses in his family which had caused him, on two occasions, to return to Nepal to help his family.

10. In particular, his Grandmother was seriously ill and he went to Nepal in August 2017 to look after her.  He obtained a deferment from the University on what were described as compassionate or compelling grounds.  That deferment was obtained on 2 August 2017.

11. He said, and the Tribunal accepts, that he was away from about 10 August to 15 September 2017.

12. The applicant said that the  deferment was until 26 February 2018.  This was confirmed by an email from the University of South Australia. There is nothing to say why the deferment was so long when the applicant was back by mid-September 2017.

13. The applicant said that he returned to University in February 2018 and returned to study until he was precluded from the course by the University for failing to maintain an adequate academic standard.

14. He said that there was a further complication in that he transferred from a Networking and Cybersecurity major to Software Development after his first semester, in about the middle of 2016.

15. The Tribunal had regard to PRISMS records which are confusing.  They show that the original Bachelor of Information Technology (Networking and Cybersecurity) was cancelled  on 2 August 2017. This is the date that the delegate found the applicant had stopped study.

16. But the PRISMS records also say that the applicant was enrolled in a Bachelor of Information Technology (Software Development), which was the subject of a CoE valid from 27 February 2017 until 31 July 2018. Further, the records show the applicant was granted a deferral on 2 August 2017 – the same day as the other course was cancelled.  The Prisms records include a copy of that CoE.

17. The Tribunal accepts the applicant’s evidence that he was enrolled in a relevant course at the time of the delegate’s decision.

18. There is no evidence that the applicant was not enrolled in a relevant course at any time during the currency of his Subclass 500 (Student) visa.  He did cancel an enrolment (Bachelor of Technology (Networking and Cybersecurity) but he was already enrolled in another course at that time (Bachelor of Technology (Software Development) and had another CoE in place at that time.

19. The Tribunal finds that the applicant has therefore not failed to comply with Condition 8202 (2)(a).

20. As the applicant has not failed to comply with the visa condition, the ground for cancellation in s.116(1)(b) does not arise. It follows that the visa cannot be cancelled.

    DECISION

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

    Mark O'Loughlin
    Member