Rajbhandari (Migration)
[2020] AATA 4140
•29 July 2020
Rajbhandari (Migration) [2020] AATA 4140 (29 July 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Jilam Rajbhandari
CASE NUMBER: 2004670
HOME AFFAIRS REFERENCE(S): BCC2019/5338483
MEMBER:Vanessa Plain
DATE:29 July 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 29 July 2020 at 11:02am
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 500 (Student) – enrolment in a registered course ceased – diagnosed health condition – applicant changed education providers after treatment – family medical issues – financial hardship – substantial academic progress – 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 4 March 2020 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 was not enrolled in a registered course of study. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant initially appeared before the Tribunal on 8 July 2020 and sought an adjournment for the purpose of providing medical documents and other supporting material. The Tribunal granted that adjournment and the applicant submitted further material to the Tribunal.
The applicant subsequently appeared before the Tribunal on 29 July 2020 to give evidence and present arguments.
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)(a) 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, 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 full time registered course: 8202(2)(a)
·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and
·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a full time registered course.
An examination of the Delegate’s Decision Record reveals that the applicant was granted a Student (Temporary) (class TU) subclass 500 visa on 12 December 2018 for the purpose of undertaking a Bachelor of Business (Accounting) at Kings Own Institute. That course was cancelled on 19 December 2018. The applicant obtained an enrolment in a Bachelor of Business (Accounting) on 26 February 2020 at the Gateway Business College.
A Notice of Intention to Consider Cancellation (NOICC) of the visa was issued to the applicant on 17 February 2020.
The applicant responded to the NOICC in writing on 25 February 2020. In that response, he sought to explain the reasons for his period of non-enrolment and why, in his view, the visa should not be cancelled.
At the hearing, the applicant acknowledged that he was not enrolled in registered course between 19 December 2018 and 26 February 2020.
On the evidence before the Tribunal as set out above, the Tribunal is satisfied that the applicant did not maintain enrolment in a registered course of study from 18 December 2020 to 26 February 2020 and on that basis, he has not complied with condition 8202(2)(a).
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 Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.
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
The applicant’s visa was granted the Student (subclass 500) Higher Education Sector visa on 12 December 2018 on the basis that he was enrolled in full time CRICOS registered course of study. The purpose for which the visa was granted ended since on 19 December 2018 which is the date the applicant’s Bachelor of Business (Accounting) degree was cancelled.
However, the applicant had compelling reasons for the period of non enrollment, prior to re-enrolling in the same degree in February 2020. Those reasons are set out below and are supported by contemporaneous documents.
The Tribunal places significant weight upon the fact that the applicant, shortly after recovering from a mental health condition (diagnosed and the subject of a course of 6 months of treatment), took steps to re-enrol in his Bachelor of Business degree, obtained credit for subjects previously completed at a previous education provider and recommend attending classes. This demonstrates that his primary purpose for being in Australia is for the purpose of study and his present purpose is, plainly, in line with the purpose for which his visa was granted.
The Tribunal gives these considerations some weight towards the visa not being cancelled.
The extent of compliance with visa conditions
The applicant has not complied with condition 8202(2)(a). The applicant has provided reasons for the breach which are set out above and below, namely, that due to his mother’s ill health and his own mental health issues (as diagnosed and the subject of ongoing treatment for a period of 6 months), he was unable to maintain enrolment, which he subsequently rectified in February 2020.
There is no evidence before the Tribunal of any failure on the part of the applicant to comply with other visa conditions.
The Tribunal considers that the requirement to maintain enrolment is integral to the grant of a student visa. However, the Tribunal acknowledges the applicant’s reasons for non compliance as set out herein and is satisfied that the applicant’s non compliance was attributable to compelling reasons reasonably outside of the control of the applicant as set out below.
The Tribunal gives these considerations some weight in favour of the visa not being cancelled.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The applicant gave evidence that he will suffer hardship if his visa is cancelled, because he will lose the credit he has already achieved in his Bachelor of Business and on that basis will suffer financial hardship, as his study will be ‘wasted.’
In view of the Tribunal’s finding that the reason for the breach of the visa condition was due to compelling reasons not wholly within the control of the applicant and the fact that he is presently enrolled in a Bachelor of Business for which he has only 3 semesters of study to go before he finishes his degree, the Tribunal considers the applicant would suffer reasonably significant emotional and psychological hardship if his visa were to be cancelled.
Based on the matters set out above, the Tribunal accepts that the cancellation has led to personal detriment for the applicant which would be compounded by the continuation of the cancellation of the visa and the Tribunal gives this a little weight towards the visa not being cancelled.
Circumstances in which ground of cancellation arose
The circumstances in which the ground for cancellation arose occurred when the applicant failed to maintain enrolment in a full time registered course of study which led to his non-compliance with visa condition 8202(2)(a).
In the applicant’s response to the NOICC, he provided the following reasons as to the circumstances in which the grounds arose as summarized in the delegate’s decision record, as follows:
·In November 2018 his mother suffered a back injury. He was unable to focus due to worrying about her condition and his mental wellbeing suffered.
·He flew home in February 2019 to support her in her recovery. He started to suffer from panic attacks which became more frequent and severe. He sought help from a doctor.
·He returned to Australia to continue his studies, but wasn't able to concentrate.
·As of February 2020 his mother has shown improvement, and he is now in a better mental state to recommence his studies and has now enrolled in a registered course of study.
The delegate noted that there was no evidence provided by the applicant to substantiate his claims that he had endured a period of depression, or that his mother was in ill health, or that he has ongoing treatment in Australia.
In advance of the hearing, the applicant submitted two medical certificates from his mother’s treating orthopedic surgeon dated 27 November 2018 and 2 February 2020 respectively. Those documents clearly establish that the applicant’s mother suffered a prolapsed disk and also referred to her condition as ‘critical.’
The applicant also submitted a medical certificate dated 26 February 2019 from Dr Dhakal, a physician in the applicant’s home country who diagnosed and treated the applicant for ‘psychogenic dyspnea.’ The Tribunal has also had regard to further documents which clearly disclose that the applicant was prescribed a 6 month course of Escitalopram and Lorazepam.
The applicant stated in his evidence that he conferred via facetime once a month with his treating physician for a period of 6 months after his initial diagnosis. He acknowledged that after approximately 6 months of treatment, his symptoms of panic subsided, and he no longer required further medication and now treats moderate panic attacks with meditation strategies rather than medication. The applicant stated that he continued his treatment via facetime with his physician in his home country, rather than seek out a doctor in Australia because only his mother and his doctor were aware of his symptoms and he felt more comfortable being treated by a physician from his background.
Once his symptoms subsided, he sought to re-enrol in his Bachelor of Business, but he considered that his current education provider was more suitable, being only 8 minutes by train from his accommodation, rather than 45 minutes away as was the case with the education provider which cancelled his CoE initially.
The applicant stated that he was unaware that it was an option to defer his studies, but that he ought to have been aware of that option. He stated further that he has only 3 semesters of study to go, on account of the credits he obtained for his Bachelor of Business at Kings Own Institute. The Tribunal has had regard to the academic transcript from Kings Own Institute, which corroborates the applicant’s evidence.
The applicant stated that he would endure significant financial hardship he could not complete his course, as the credits he has obtained will be wasted.
Based on the matters set out above and particularly in view of the documents produced by the applicant which were not before the delegate at the time of decision, the Tribunal is persuaded that the reason for the breach of the visa condition was not reasonably within the control of the applicant. It makes this finding based upon the medical evidence of the treating physician, the nature of the medication that applicant was prescribed for 6 months and the applicant’s oral evidence as to the substance of his ongoing treatment with the physician for a period of 6 months after his initial diagnosis. The Tribunal further accepts that the applicant’s mother was in very ill health and this fact impacted upon his ability to maintain enrolment, coupled with his own diagnosed mental health conditions.
The Tribunal is further persuaded by the fact that the applicant, once he acknowledged his health had improved, took steps to re-enrol and did re-enrol in exactly the same degree that he initially embarked upon. Further, he sought and obtained credit for his previous subjects that he completed. This is the conduct of a genuine student who wishes to progress academically.
Based on the above, the Tribunal is persuaded that there are compelling reasons for the breach of the visa condition in this case that were not reasonably within the control of the applicant and the Tribunal gives this consideration significant weight in favour of not cancelling the visa.
Past and present behaviour of the visa holder towards the Department
The applicant has conducted himself in good faith in his dealings with the Department and its staff. He responded to the NOICC promptly and in some detail.
The Tribunal gives this some weight in favour of the visa not being cancelled.
Whether there would be consequential cancellations under s.140
There are no persons in Australia whose visas would be consequentially cancelled as a result of the applicant’s visa being cancelled.
The Tribunal therefore gives this factor no weight for or against cancelling the visa for this consideration.
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
If the visa were to be cancelled, the applicant would be excluded from making applications for certain types of visas and may be liable to detention and/or deportation if he does not depart the country. Section 48 of the Migration Act 1958 that may restrict him from applying for further visas while in Australia. Cancellation under this ground may also mean that he may be unable to meet Public Interest Criterion 4013 in relation to being granted certain temporary visas he may lodge for a period of three years from the date of the cancellation.
These are mandatory consequences of the legislation and in view of the fact that the Tribunal has found that the reason for the breach of the visa condition was not reasonably within the control of the applicant, the Tribunal considers these mandatory consequences to be manifestly unfair in the circumstances and the Tribunal gives this consideration weight in favour of not cancelling the visa.
Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation
The Tribunal has considered whether Australia would be in breach of its international obligations in this case. The international obligations include the obligation in relation to non-refoulement pursuant to the Refugees Convention, the Refugees Protocol, the rights of any children pursuant to Article 3 of the Convention on the Rights of the Child (CROC), and the International Covenant on Civil and Political Rights (ICCPR).
The applicant does not have a parental relationship with a child who is now in Australia and under 18 years of age.
The applicant is a citizen of Nepal and has had not applied for protection in Australia, nor has he stated that he would face harm if he returned to his home country.
There is no evidence before the Tribunal indicating that Australia would be in breach of its international obligations to the applicant, if the Student visa is cancelled.
On the basis of the above, the Tribunal does not afford this factor any weight for or against a decision to cancel the visa for this consideration.
If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
Not applicable.
Any other relevant matters
There are no other relevant matters for consideration.
The matters set out above do not reveal any bad faith on the part of the applicant and it is clear based on the evidence that the reason for the breach of the visa was not reasonably within the control of the applicant.
It is also 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
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Remedies
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