Rana (Migration)

Rana (Migration) [2020] AATA 4813 (19 November 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Riya Rana
CASE NUMBER:  1915053
HOME AFFAIRS REFERENCE(S):          BCC2016/3186872
MEMBER:Melissa McAdam
DATE:19 November 2020
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 19 November 2020 at 4:19pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Federal Circuit Court remittal – not enrolled in registered course – study difficulties – enrolment in and non-completion of lower-level course – quality of college, teachers and course – homesickness and distress over earthquake in home country – mental health treatment and return to study – father’s expectations – emotional hardship if separated from partner, who is studying in Australia – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 116(1)(b)
Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)(a)
CASE
Ibrahim v MHA [2019] FCAFC 89
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 19 December 2016 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).
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.
The matter was previously the subject of a purported Tribunal decision.[1] The applicant appealed that decision in the Federal Circuit Court.[2] The decision was remitted by consent with the Minister conceding that it was affected by jurisdictional error, in that the Tribunal applied the wrong test or asked itself the wrong question in the application of its discretion pursuant to section 116 of the Migration Act 1958 (Cth), when it considered whether there were "any compelling circumstances that should prevent the Tribunal from exercising the discretion to cancel the applicant's Student visa".
NOICC
[1] File Number 1622415.
[2] Federal Circuit Court Matter SYG453/2019.
On 16 November 2016 the Department issued a Notice of Intention to Consider Cancellation of the applicant’s Student visa under s.116 of the Act (‘the NOICC’) to the applicant. In the NOICC the delegate set out the following:
It appears that you may not have complied with condition s116(1)(b) breach of condition -
8202 which was imposed on your visa. The visa condition states:
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.
Specifically, it appears that you have not complied with paragraph 8202(2)(a) of condition
8202. Condition 8202(2)(a) states the visa holder meets the requirements if the visa holder
is enrolled in a registered course. Based on evidence available to me in the Provider
Registration and International Student Management System (PRISMS), it appears that you
have not been enrolled in a registered course of study since 15 December 2015. Therefore,
it appears you do not meet the requirements of condition 8202(2)(a).
If you did not comply with condition s116(1)(b) breach of condition - 8202, your visa may
be cancelled under paragraph 116(1)(b) of the Act which sets out the following ground for
cancellation: 116 (1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
(b) its holder has not complied with a condition of the visa;
Response to NOICC
On 22 November 2016 the applicant provided the following response to the NOICC:
I have gone through lot of hardship and trouble in these past months.
I understand this may be no reason to not attain college but I was depressed and had given up on everything. I would sincerely like to apologise for any inconvenience I may have caused and would also want to apologise for not attaining college and maintaining my student visa condition. Given a choice I would have gone back and done things differently however I can only assure you that I have realised my mistake and have enrolled for Diploma of Business leading to Bachelor of Business (Professional Accounting) at Elite Education Institute.
I have also been attending a psychiatrist to help me overcome my anxiety and now I feel more optimistic and positive. I believe I can complete my course if not wholly at least a substantial part before my visa expires however I am planning to fast track the course and complete it before my visa expires.
To further support my case I have attached the following documents:
·CoE for Bachelor of Business (Professional Accounting)
·CoE for Diploma of Business
·Doctor Report
·Letter from Psychiatrist
·Detailed Explanation Letter of my Situation
·UTS Foundation Transcript
·Evidence of Diploma Deferral
Lastly I would want to request the kind officer to provide me with an opportunity to realise and live my dream of being a successful graduate from Australia. This would mean the world for me and my family. I would also want to assure you that such a thing will never happen in future and that I have learned from my mistake and intend to move forward positively and successfully.
I feel gutted and sick on my stomach to be in this position and given a chance would have avoided it at all costs. However I can only move forward and undo my mistakes and I request the kind officer to consider my case. I had issues which was beyond my control but now I feel positive and would want to achieve what I had come to Australia for that is completion of a undergraduate course from Australia.
The applicant attached the following documents to her response:
-Overseas Student Confirmation of Enrolment from the Elite Education Institute for a Bachelor of Business (Professional Accounting) course, starting 16/09/2017 and ending 25/10/2019.
-Overseas Student Confirmation of Enrolment from the Elite Education Institute for a Diploma of Business (Professional Accounting) course starting 21/11/2016 and ending 15/09/2017.
-A referral letter from a doctor, dated 17 November 2016, stating that the applicant has “symptoms of reactive depression”, and referring her to a psychologist in Mascot.
-A letter dated 21 November 2016, from a psychologist in Burwood, stating that the applicant had consulted him for anxiety and depression. He writes that language difficulties affected her studies in Australia so that she enrolled in a Diploma course instead of taking up her planned Bachelor degree course. Three members of her family were killed in the 2015 earthquake in Nepal. She was very distressed by this and anxious because telephone communication to Nepal was cut for over one week. She had sleep difficulties over the next few months and recurrent ‘flashbacks’ to the earthquake. She could not cope with her studies and deferred them for three months. She later did not re-enrol in time because of her distressed emotional state. She has had difficulty returning to study because of post-traumatic anxiety. This has resolved to a degree. She will have psychological treatment with the psychologist, as required. She has been accepted into a diploma course and it is his opinion she can resume her studies.
-The applicant’s Academic Record from UTS, issued on 9 January 2015 for the course ‘Foundation Studies – Business’, showing that she has passed three subjects and failed seven subjects.
-A partial email dated 16 June 2015 about the applicant’s poor academic performance, from an Academic Adviser at UTS Insearch.
-A typed letter from the applicant stating that she struggled with her Foundation course but completed it and her Diploma course at UTS. However the earthquake struck Nepal in April 2015 causing her great emotional distress. She was granted three months’ compassionate leave from study. Her family informed her there was a lot of destruction but they were all physically well. She wanted to return to Nepal but her family told her it was not safe to. She became depressed and did not recover within three months. So she failed to continue with her study. Her parents have now returned to normal and she has recovered. She still sees a psychologist but is mentally prepared for study. Her parents will financially support her studies. She is one of three sisters. Her parents have made countless sacrifices for her to succeed in life. She wants to make their sacrifices count. Nepal is a fast developing economy sandwiched between two giants and emerging superpowers of the world namely China and India. Growth in Nepal is slow but certain. She has chosen to pursue studies in the field of Business and Accounting because many national and multinational organizations are anticipated to be established in Nepal in the near future. She wants to be at the helm of the top executive job position in Nepal and use the knowledge and expertise gained in Australia for the betterment and upliftment of the working standard and culture in Nepal. She has been in Australia for close to three years now and has learnt a lot in terms of working standard and culture. She is still missing successful attainment of an undergraduate degree which will improve her resume as well as her chances of working at the highest executive level in Nepal. A Head Consumer Banker can demand a salary of NRs 600000 to NRs 800000 per month and it is one of the highest positions for an individual not only in the bank but in society too. The executive and high positions in Nepal are still dominated by males and she wants to break the status quo. She sees herself as a Head Consumer Banker for a renowned bank in Nepal. Her Australian work experience and Bachelor’s Degree will help her get this job. She was given a semester break by UTS for her Diploma for 3 months starting June 2015 and was supposed to start at Oct 2015 however she didn’t enrol as she was mentally not prepared for a classroom situation. She was lost and hopeless and didn’t care for anything. However, now she has now realised her mistake and wants to get back on track and pursue her dream of getting a degree and building a good career. She is ready to tackle any challenges that lie ahead. She has also visited and consulted psychiatrists and is certain that she is on the right path. She has enrolled in a Diploma of Business leading to Bachelor of Accounting at Elite Education Vocational Institute. The degree from Elite will be of similar standard to that of UTS and she is focused upon attaining this degree. She believes everyone in life deserves a second chance. Her visa expires on 15/03/2018 and she is sure she will be very close to completing her Bachelors by then. She wants to be successful for her family and for herself. She acknowledges her mistake and wants to be given a second chance to rectify the errors she has made.
Delegate’s Decision
On 19 December 2016 the delegate decided to cancel the applicant’s visa. The delegate reasoned that according to the applicant’s education record in its database ‘PRISMS’, the applicant was not enrolled in a registered course from 16 December 2015 until 20 November 2016. On 21 November 2016 she obtained enrolment in a CRICOS registered course of study to study at Elite Education Vocational Institute during the period 21 November 2016 and 15 September 2017. Therefore, between the dates 16 December 2015 and 20 November 2016 the applicant was in non-compliance with condition 8202(2)(a).
Information to the Tribunal
On 21 January 2019 the applicant submitted the following additional written information to the Tribunal:
-Overseas Student Confirmation of Enrolments for her past UTS Foundation Studies degree and Diploma courses.
-An email dated 17 June 2015 from the Student Centre of Insearch, to the applicant, attaching a deferral application form and providing instructions on how to complete the application.
At a hearing conducted by the previous Tribunal member, the applicant gave the following information:
-Her family would be upset and disappointed if she returns to Nepal without a degree or qualification.
-Her father is semi-retired and is a scarp-metal merchant in Nepal.
-Her family in Nepal would allow her to live at home and would support her.
-She is in an ongoing relationship with her Nepalese boyfriend in Australia. He is in Australia and studying on a Student visa.
-Her family live about 5 hours south of Kathmandu, by car.
-She acknowledged that the 2015 earthquake in Nepal were towards the northwest and the east, of Kathmandu, so her family suffered no physical harm in the earthquake.
-She had cousins in or around Kathmandu but none of them were harmed.
-She did not seek any further leave from her studies after her three months compassionate leave expired.
-She saw a psychologist on one occasion.
The applicant appeared before the Tribunal, currently constituted, on 28 September 2020 to give evidence and present arguments. The following is a summary of the information she provided at this hearing:
a.She stopped studying at the time there was an earthquake in Nepal. A lot of businesses were destroyed. She had a ‘mental issue’. Her family was also affected. Her grandmother was living in Kathmandu. Her mother’s brother, Gopal Raj, was also in Kathmandu and his apartment collapsed. He was injured with a broken leg. The family could not contact him for a week. She is very close to her grandmother and uncle. Her uncle has recovered. He and her grandmother no longer live in Kathmandu. The applicant will submit some evidence of her uncle’s injury from the earthquake, to the Tribunal.
b.After the earthquake she enrolled in a Bachelor of Accounting. This was after her visa had been cancelled and she was on a Bridging visa. She tried to find a good college to enrol in but they would not accept her enrolment on a Bridging visa. The college she eventually found was not a good college. It has closed down. The teachers would turn up late and not care what the students did. They would refer the students to google to learn. It was not a good decision to enrol in a Bachelor of Accounting at that college. She stopped studying there maybe one or two years ago. It was not a good college and she also did not have enough money for the fees because her father no longer supported her.
c.Her father wants her to obtain a business or accounting degree. He runs a business. He has no sons. She is his eldest daughter and her younger sisters are married. Her father expects the applicant to return to Nepal with a degree and help him expand his business and eventually take it over. The business is in steel and metal supplies for construction. It is called ‘Rajesh Supplies’ and is based in the applicant’s home town.
d.Her father won’t accept the applicant returning to Nepal without a degree. He has stopped supporting her so now she has to rely upon her boyfriend for financial support her. Her boyfriend is allowed to work and works part-time.
e.The applicant came to Australia to study. In Nepal she wanted to become a nurse but her father insisted she do business so she had to fulfill his wishes. He told her that she could not be a nurse and that her sister could become a nurse but the applicant had to study business. Her sister did become a nurse but she is not working now as she is married with a child.
f.The applicant lives with her boyfriend, Yujen Suwal, and he is very supportive. He is studying IT and is a Masters student at the Holmes Institute. He works hard at his studies. He goes to classes and passes his subjects and is very diligent. The applicant thinks he has two years left on his Student visa. She will submit some evidence of his visa to the Tribunal.
g.After her visa was cancelled the applicant had a meeting with the Dean at Holmes Institute to ask to be enrolled in a business course there. She thought she could borrow money to pay the course fees. But the Dean would not accept her enrolment because she was on a Bridging visa and it was too risky. This was in about 2017.
h.During the year of the earthquake in Nepal the applicant saw a psychologist. He helped her and made her think that the bad feelings were going away. She is no longer seeing a psychologist or counsellor.
i.She has anxiety and can’t sleep at night. Her anxiety is mostly about her visa, her future work, and her family. She just has contact with her mother and sisters. Her father has not spoken to her for three or four years because her visa was cancelled. He was really upset and told her he cannot support her anymore.
j.If she is able to obtain a visa again this will make her father happy and he will then pay for her studies. She will enrol in a Bachelor of Accounting and prove herself to her father. She believes she will be able to study successfully and pass the subjects for an accounting degree. In Nepal she studied economics and accounting background subjects and did very well in these.
k.She will attend class if she is able to enrol in a degree again. Her family will again support her so she will not need to work. She may do some part-time work. She worked in the past as a cook in a pizza restaurant so she could do this sort of work again. Her boyfriend works part time and also receives money from his father in Nepal. She and her boyfriend rent a two bedroom house in Burwood with another couple.
l.She does not want to study in Nepal because the colleges there are not very good. There is only one university and it is government run so the conditions are not good, the teachers just attend for a short time and then send the students home. Nepal is good for IT and engineering studies but not for business and accounting. It will be hard for her to work well in business in Nepal without a degree from Australia. She won’t be able to get work as a nurse like her sister did because her father won’t allow her to. He won’t let her return home until she is successful in obtaining a business degree in Australia. This is one of her main problems, that she can’t return home. She will ask her mother for help to get the documents from Nepal to submit to the Tribunal.
m.She had just enrolled in a Diploma in Accounting and was attending classes when the earthquake struck. She made a mistake in the past in letting her enrolment lapse and did not know how to fix things. It has been almost six years and she has not seen her family because her father will not accept her. She feels really homesick. She wants to study very hard to complete a degree here so that she can then go home.
n.She knows it was her mistake not to continue studying. She has learned from this. Her friends have all graduated and she wonders what if she had not stopped her studies. Then her father would accept her and she could go home. She has to now study. She is already 28 years old. She has to study very hard to make her father proud. She will return to Nepal once she obtains a business degree in Australia. She has to go there to help her father in his business because she has no brothers. The degree should take three to four years to complete.
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 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 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).
In the present case, the applicant’s visa was cancelled on the basis she was not enrolled in a registered course.
The applicant has confirmed that there was a substantial period from late 2015 to late 2016 in which the applicant was not enrolled in a registered course. The applicant’s PRISMS’ record also shows that she was not enrolled in this time.
On the evidence before it the Tribunal finds that 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
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 Procedural Instruction ‘General visa cancellation powers’.
The 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 came to Australia to study. She completed her Foundation Studies course in December 2014 but stopped studying in early 2015. In 2017 she enrolled in a Diploma and a Bachelor of Business course. She did not complete these. She gave evidence that the college she obtained enrolment in was not a quality education institution so that study was not worthwhile there. Her evidence is borne out by information on the Tertiary Education Quality and Standards Agency (TEQSA) website, which records an enrolment restriction being placed on Elite Education Institute because TEQSA:
“believes on reasonable grounds that Elite:
-does not have the clearly demonstrated capacity to provide education of a satisfactory standard; and
-has not been providing, or has not provided, education of a satisfactory standard.
Specifically, TEQSA holds substantial concerns that Elite Education Institute Pty Ltd:
a.is not delivering its courses so as to appropriately engage students in the course content in a manner consistent with the form of the course registered under the ESOS Act, and
b.has not ensured, and will not ensure, that assessment in its higher education courses has the necessary quality and integrity.”[3]
[3] TEQSA, ‘TEQSA Restricts New Enrolments At Elite Education Institute Pty Ltd’, 25 June 2019,
A more recent record on the TEQSA website indicates that Elite Education Institute’s registration renewal has been rejected by TEQSA, with the report stating:
“In particular, TEQSA has found that Elite:
§has significant and widespread issues with the academic integrity of its students' work; and
§has not been ensuring its students appropriately engage in advanced knowledge and inquiry;
§has not ensured that the teaching and learning activities of its courses foster the achievement of the expected learning outcomes; and
§has offered, and provided, courses of study to overseas students when it was not registered to provide those courses to overseas students.” [4]
[4] TEQSA, ‘Elite Education Institute Pty. Ltd.: Registration Not Renewed 5 February 2020 Effective 31 March 2020’,
The applicant gave evidence which the Tribunal accepts that she initially tried to obtain enrolment in a college she considered reputable, Homes Institute, and met with the Dean there. Because she had only a Bridging visa the college would not allow her enrolment. The Tribunal accepts that she was only able to obtain enrolment in a college which reportedly offered sub-standard education and discovered it was not worth continuing her education there.
The applicant submitted copies of her Nepalese study results
The Tribunal accepts that the applicant initially studied successfully, had a period of approximately one year in which she abandoned her studies, then made concerted efforts to resume her studies. The Tribunal accepts that her Bridging visa status would create some difficulties for her to obtain enrolment at many education institutions. The applicant was also persuasive that she wants to and intends to resume her studies if she is granted another student visa.
The Tribunal gives these factors weight in the applicant’s favour.
The extent of compliance with visa conditions
There is no indication before the Tribunal that the applicant has breached any of her other visa conditions. The Tribunal therefore gives this factor some weight in the applicant’s favour.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The applicant gave evidence that it will be difficult for her to find suitable employment in Nepal if her visa remains cancelled and she has to return to Nepal without a business degree from Australia. The Tribunal considers that there is no indication that the applicant would not be able to obtain any employment in Nepal. However, it accepts that her employment options may be lesser in Nepal without an overseas degree or qualification.
The applicant has also stated that her father will not accept her if her visa remains cancelled and she has to return to Nepal having failed in her study here. There is some information to suggest that initially, the applicant’s family remained supportive of her following her visa cancellation. However the Tribunal accepts the possibility that given the applicant has remained in Australia for several years without being successful in obtaining a substantive visa or an appropriate education qualification, the applicant’s father would be disapproving and may well withdraw his full support from the applicant. That her father’s reaction would extend to disallowing the applicant from return to the family home appears extreme and less likely. The Tribunal considers this possibility a remote one.
The applicant is in a long-term relationship with a partner with whom she lives. The applicant submitted a letter from Department confirming that her partner is in the process of applying for a further Student visa in Australia. If the applicant has to return to Nepal she will therefore be separated from him for several years. The Tribunal accepts this will cause her emotional hardship.
The Tribunal finds that the hardship that may be caused to the applicant amounts to lesser employment opportunities for the applicant in Nepal; the continuing emotional distress to the applicant caused by her father’s disapproval; the continuing financial difficulty for the applicant caused by her father’s withdrawal of full financial support; and emotional distress to the applicant if separated from her partner.
The Tribunal therefore gives this factor some weight in the applicant’s favour.
Circumstances in which ground of cancellation arose. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control
The ground for cancellation arose because the applicant failed to maintain her enrolment in a registered course. The applicant cites the emotional distress caused by the earthquake in Nepal in April 2015 as the reason she was unable to continue her studies.
The Tribunal acknowledges the 2015 earthquake was a devastating event. Fortunately, the applicant’s immediate family and their home remained safe. The applicant has not submitted any evidence of her uncle being injured in the earthquake in Kathmandu. She has raised this claim at a very late stage, and it contradicts her previous evidence. In view of concerns about the claim the Tribunal does not accept that the applicant’s uncle was injured in the 2015 earthquake. However, give the widespread deaths, injuries, and property destruction in the country it is understandable the applicant, as a Nepalese national, would have been greatly distressed by the event.
The Tribunal notes that the applicant eventually saw a counsellor, once or two times, and gained some support for a deferral request from a UTS centre. There is no indication that the applicant did apply for a deferral or that the deferral was granted.
The Tribunal considers that the earthquake could have caused a temporary disruption to the applicant’s ability to focus upon her studies. However it is not clear how this would extend to preventing her from studying for an entire year or more.
At the hearing the applicant referred to her general state of mind and attitude at the time, and her lack of effort to study or engage with study, acknowledging it was a mistake on her part that she regrets.
The Tribunal considers that the applicant could have better engaged with the university and its counselling service so that she could obtain a deferral from her studies while still maintaining her enrolment. Her evidence also indicates she could herself have made more effort to re-engage with her studies so that her enrolment was not cancelled. The Tribunal therefore does not view the circumstances in which the ground of cancellation arose as out of the applicant’s control.
The Tribunal gives this factor only a little weight in the applicant’s favour.
Past and present behaviour of the visa holder towards the department
The applicant has been cooperative and responsive in regard to her communications with the Tribunal. There is no indication of any past or present behaviour on the applicant’s part, towards the Department or the Tribunal, that should be viewed adversely.
Whether there would be consequential cancellations under s.140
There is no indication of any consequential cancellations under s.140.
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
The cancellation of the applicant’s visa means that she could potentially become an unlawful non-citizen, subject to detention and removal from Australia, unless she departs Australia voluntarily before the expiration of her Bridging visa or subsequent Bridging visa. The applicant would also be subject to s.48 of the Migration Act which would limit her options for applying for a visa. In the future she would also have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a further visa for up to three years. However, those are the intended consequences of the legislation and the Tribunal views them neutrally.
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
Non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there will be a risk of harm. Australia is a signatory to a number of international instruments which give rise to non-refoulement obligations. Australia is a signatory to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR).
“Non-refoulement obligations” is not confined to the protection obligations to which s.36(2) of the Act refers: see Ibrahim v MHA [2019] FCAFC 89 at [103]. It is defined in the Migration Act 1958 to include non-refoulement obligations that may arise because Australia is a party to one of the instruments mentioned above, or any obligations accorded by customary international law that are of a similar kind.
The applicant stated at hearing that her only reason for not wanting to return to Nepal was so she could remain in Australia temporarily to complete a Bachelor’s degree. She confirmed that once she achieved this she would be able to return to Nepal.
There is no indication that the applicant would face serious or significant harm or any harm in Nepal of a type that would attract non-refoulement obligations.
The Tribunal finds that in the circumstances of this case, cancellation would not lead to removal in breach of non-refoulement obligations. There are no indications that any other international obligations may be breached as a result of the cancellation of the applicant’s visa. The Tribunal therefore considers this factor neutrally.
If a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
The applicant’s Subclass 573 visa is not a permanent visa.
Any other relevant matters
The applicant’s subclass 573 visa was due to expire in March 2018. If the Tribunal concludes that it should not exercise its discretion to cancel the applicant’s visa, the applicant would need to apply for a further student visa if she wishes to again study in Australia.
The applicant gave persuasive evidence at the hearing of a strong desire to study and complete a Bachelor’s degree in Australia, and of her belief that she could do so successfully.
The Tribunal considers that the applicant’s apparent determination to study and obtain a business degree here warrants providing her the opportunity to apply for a Student visa.
Conclusion
The Tribunal acknowledges that the applicant’s failure to maintain her enrolment in a registered course was a serious breach of her visa conditions. However, balanced against this is the applicant’s initial engagement with studies in her first year in Australia, her efforts to find enrolment in 2017 and her seeming renewed drive to successfully study. As noted above there are several factors favourable to the applicant in the Tribunal’ s consideration of its discretion.
Therefore, 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 573 Higher Education Sector visa.
Melissa McAdam
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.

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Citations

Rana (Migration) [2020] AATA 4813

Cases Citing This Decision

Cases Cited

Statutory Material Cited

Ibrahim v Minister for Home Affairs [2019] FCAFC 89

[2020] AATA 4813

19 November 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Remedies

Statutory Construction