Rai Lama (Migration)

[2019] AATA 6373

Rai Lama (Migration) [2019] AATA 6373 (6 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Ashmita Rai Lama
Mr Mingma Lama

CASE NUMBER:  1731279

HOME AFFAIRS REFERENCE(S):           BCC2017/3014047

MEMBER:Damian Creedon

DATE:6 November 2019

PLACE OF DECISION:  Perth

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

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 06 November 2019 at 2:24pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education – not enrolled in registered course – circumstances beyond applicant’s control – timing of cancellation notice – changed circumstances – pursued nursing studies – acted consistently with stated intentions – successful academic progression – genuine intention to study – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140(1), 348
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 30 November 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the first named applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. 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. A copy of the delegate’s decision record was submitted to the Tribunal by the applicant for the purposes of the review.

4. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicants.

5. The first-named applicant (the applicant) appeared before the Tribunal on 1 November 2019 to give evidence and present arguments.

6. The applicants were represented in relation to the review by their registered migration agent.

7. 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

8. 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?

9. 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).

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

11. The delegate’s decision record sets out the following material information:

    The visa holder was granted the student visa on the basis that they were enrolled in a fulltime registered course (s) of study. I note the purpose for which their visa was granted ended on 21 February 2017. This is the date the visa holders enrolment in a registered course of study was cancelled

12. When put to the applicant, she admitted in sworn evidence to the Tribunal that she was not enrolled in a registered course (for a period of time) as alleged in the delegate’s decision record.

13. On the evidence before the Tribunal, the applicant was not enrolled in a registered course for a period of time. Accordingly, the Tribunal finds that the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

    Introduction

14. 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 Procedures Advice Manual (PAM3) ‘General visa cancellation powers’

    Background

15. The applicant is a 26-year-old Nelapese national who first arrived in Australia on 25 November 2014 as the holder of a Student (TU573) visa.

16. The applicant’s the applicant’s Provider Registration and International Student Management System (PRISMS) record shows that since her arrival in Australia she has successfully completed the following course:

Course Name	Date Commenced	Date Completed
·     Advanced Diploma of Accounting[1]	18/01/2016	25/11/2016

[1] Which also, on the applicant’s evidence, comprised a Certificate IV in Accounting which the applicant completed in November 2015 but which is not separately credited.

1. PRISMS also records that the applicant had been on a study pathway towards a Bachelor of Commerce that she was scheduled to commence on 13 February 2017.

   Circumstances in which the ground of cancellation arose.

2. The applicant stated in evidence that she arrived in Australia as a 21-year-old on 25 November 2014 to pursue a study pathway leading to a Bachelor of Commerce.  She stated that, at that time, she anticipated a career as an accountant in her home country.

3. She stated that she successfully studied for a Certificate IV and Advanced Diploma of Accounting but that the final completion of her Advanced Diploma was delayed by several months due to the necessity to re-sit several exams in order to finally pass all of her units.[2]

   [2] The applicant provided the Tribunal with receipts for ‘re-assessment fees’ from her course provider for these courses.

4. She states that she successfully completed these exams in or around mid-2017.  By that time, however, she states that she had decided to change her study and career pathway from Accounting to Nursing.  When pressed by the Tribunal as to why she had made that decision, the applicant cited two reasons: firstly, her mother had been a nurse in Nepal and the applicant wished to follow her mother in that career (the accounting pathway having been chosen for her by her father); and secondly, she had obtained a Certificate III in Aged Care in Australia and had been working part-time in aged care facilities in Australia to provide for her living expenses.  She stated that she found this work rewarding and this experience reaffirmed for her a desire to work as a Nurse.

5. The applicant stated that through the first half of 2017 she engaged with new course providers to commence a study pathway comprising a Diploma of Nursing and a Bachelor of Nursing and that she had been in the process of re-enrolling in this pathway (intending to commence the Diploma of Nursing on 6 November 2017) on when she received the Department’s Notice of Intention to Consider Cancellation (NOICC) on 16 October 2017.

6. The applicant answered the NOICC on or around 19 October 2017, advancing (materially) her position as related in her evidence to the Tribunal. 

7. Notably, since 6 November 2017, and although her visa was cancelled on 30 November 2017, the applicant has pursued her Diploma of Nursing[3] and her evidence is that she anticipates finishing that course in December 2019.  The applicant stated to the Tribunal that (subject to her visa status) she intends to commence a Bachelors of Nursing on 10 February 2020.[4]

   [3] The applicant provided the Tribunal with a letter from her course provider dated 31 October 2019 confirming that she is currently enrolled in and studying a Diploma of Nursing which she commenced on 6 November 2017.

   [4] The applicant provided the Tribunal with a ‘Provisional Offer’ for a Bachelor of Nursing, the offer presently being contingent upon, inter alia, successful completion of the Diploma of Nursing.

8. It appears to the Tribunal that the timing of events conspired against the applicant and that she was unable, upon receipt of the NOICC, to persuasively articulate her changed circumstances at that time.  On balance the Tribunal is persuaded that these factors, being the factors leading to the cancellation of the applicant’s visa, were beyond her control.  Whether these events may have been better managed is a matter of conjecture with the benefit of hindsight.  The Tribunal is fortified in this conclusion by the applicant’s successful pursuit of her Diploma of Nursing in the intervening period to date.  In short, she has acted consistently with her stated intentions some two years ago.

9. The Tribunal places moderate weight on this factor in the applicant’s favour.

   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

10. The applicant stated to the Tribunal that wishes to continue her studies in Australia as the education system here is superior to that in Nepal and she wishes to pursue her future studies at a level consistent with her existing qualifications.  The Tribunal does not regard this as a “compelling” need, though it does disclose a reasonable motive.  In all of the circumstances, however, the Tribunal does not weigh this factor against the applicant.

    The extent of compliance with visa conditions

11. The applicant was responsible for a breach pertaining to her visa.  Her visa was granted on 1 November 2014 and, despite completing some of her studies, her course and her student visa were cancelled.  Ultimately it is for the applicant to take personal responsibility for managing her course requirements and visa obligations.  In all of the circumstances, however, the Tribunal gives less weight in this instance to cancelling her visa on account of the applicant’s particular circumstances.

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

12. The Tribunal accepts that the applicant and her family have invested financial resources in furthering her education in Australia, however she cited no particular hardships in her evidence to the Tribunal should her visa be cancelled. 

13. In all of the circumstances, the Tribunal does not weigh this factor either in favour of or against the applicant.

    Past and present behaviour of the visa holder towards the department

14. The delegate noted the following in their decision record in respect of this factor:

    I give some weight to this consideration in the visa holder’s favour as there is no evidence that they have been uncooperative with Department.

15. The Department issued the applicant with a NOICC on 16 October 2017.  The delegate’s decision record notes that the applicant provided a written response to the NOICC on 19 October 2017.  In its material aspects the applicant’s response was consistent with her evidence to the Tribunal.

16. In the context of the whole of the evidence, including the manner of the applicant’s presentation before the Tribunal, the Tribunal is persuaded that the applicant’s prompt response to the NOICC is consistent with a willingness on her part to engage with the Department to resolve her breach of condition 8202 of her visa.  As with the delegate, the Tribunal weighs this factor slightly in the applicant’s favour.

    Whether there would be consequential cancellations under s.140

17. There are no consequential cancellations under s.140; accordingly the Tribunal places no weight on this factor in the applicant’s favour.

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

18. The delegate’s decision indicates that if the applicant’s visa were to be cancelled she would become unlawful and could be liable for detention under s.189 and removal under s.198 of the Act if she does not voluntarily depart Australia. Further, s.48 of the Act means that she will have limited options to apply for further visas in Australia.

19. There is nothing to indicate the applicant would not be able to return to Zimbabwe.  The Tribunal affords little weight to this consideration in determining whether to cancel the visa.

    Whether any international obligations would be breached as a result of the cancellation

20. There is no evidence before the Tribunal that any international obligations would be breached as a result of the visa cancellation.

    Conclusion

21. The Tribunal has considered the totality of the applicant’s circumstances.  The Tribunal has found that the applicant breached condition 8202 of her visa.  The Tribunal has found however that the circumstances in which the breach occurred, that is the timing of the NOICC and the inability of the applicant to persuasively articulate her changed circumstances at that time, were beyond her control.   The Tribunal is persuaded that her successful academic progression both before and since that time is consistent with the applicant holding both a genuine intention and motive to study in Australia and an intention to abide by her obligations as the holder of a Student visa.  The Tribunal places moderate weight on these circumstances and, when combined with the applicant’s recognition of her breach of her visa condition and her willingness to engage with the Department to resolve it, on balance, and considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

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

    Damian Creedon
    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.