Rana (Migration)

[2019] AATA 1479

Rana (Migration) [2019] AATA 1479 (30 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Riya Rana

CASE NUMBER:  1622415

HOME AFFAIRS REFERENCE(S):           BCC2016/3186872

MEMBER:Mr S Norman

DATE:30 January 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 30 January 2019 at 10:02am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – applicant not enrolled in registered course – claims of hardship – earthquake in Nepal – not satisfied distress arising from Nepal earthquake – no compelling circumstances preventing cancellation – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 48, 116(1)(b), 189, 198
Migration Regulations 1994 (Cth), Schedule 8 Condition 8202, Public Interest Criterion (PIC) 4013

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. 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 Department delegate’s decision was lodged with the Tribunal.

2. The delegate cancelled the visa on the basis that the applicant was determined to have 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 29 January 2019 to give evidence and present arguments. The applicant was represented in relation to the review by her registered migration agent.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   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. The applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 11 October 2013. By Notice of Intention to Consider Cancellation (NOICC) of that visa dated 16 November 2016, the applicant was advised that information on the Provider Registration and International Student Management System (PRISMS) indicated she had not been enrolled in registered course of study since 15 December 2015. Therefore, it appeared she had breached condition 8202(2)(a) which had been attached to her visa. It also appeared there were grounds to cancel the applicant’s Student visa pursuant to s.116(1)(b) of the Act.

8. The applicant responded to the NOICC (discussed below). However, at hearing, she did not dispute that she had ceased her enrolment in a registered course of study for some 11 months at the time the NOICC was issued.

9. 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)(a).

   Consideration of the discretion to cancel the visa

10. 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’.

11. At hearing, the applicant’s agent advised that no other documents would be lodged on behalf of the applicant;[1] though same could be provided if requested. The Tribunal said it did not make any request for further documents.

    [1] Tribunal – folio 57.

12. Regarding the purpose of the applicant’s travel to and stay in Australia, there is no evidence to suggest the applicant travelled to and stayed in Australia otherwise than for the purposes of study. However, since arriving in Australia in February 2014, the applicant said she had only successfully completed the Foundation Program at UTS (a nine month course). At hearing, the agent said that approximately two weeks prior to the Tribunal hearing, the applicant had sought a further COE for a registered course (though no decision about same had yet been received). Respectfully, and after considering all the findings herein, the Tribunal is satisfied this belated effort is insufficient to discount other findings herein.

13. Therefore, and notwithstanding the applicant’s and her agent’s claims to the contrary, the Tribunal is not satisfied the applicant’s present intention for remaining in Australia, is for the purposes of study.

14. Regarding the extent of compliance with her visa conditions, there is no evidence presently before the Tribunal that the applicant has not complied with any other condition attached to her visa.

15. Regarding the degree of hardship that may be caused to the applicant or her family if her visa is cancelled, the applicant said (words to the effect) that her family would be upset and disappointed in her should she return to Nepal without a degree (which the Tribunal accepts is plausible). However, the applicant conceded that her family would still allow her to reside at the family home and pay for her upkeep. The agent said the applicant would not be able to obtain the better employment offered to graduates in Nepal. The agent also did not believe the applicant would be able to obtain employment commensurate with her skills in Nepal. The Tribunal accepts the applicant may have found better work if she had successfully completed a degree in Australia. However, and given the applicant’s middle sister was currently studying nursing in Nepal, and her youngest sister (who like the applicant had only completed secondary school in Nepal), was working in a bank in Nepal, the Tribunal said that it may accept (and now does accept), the applicant would be able to find work commensurate with her skills in Nepal.

16. The agent said the applicant’s father had ‘no plans’ if the applicant returned to Nepal. However, as stated above, the Tribunal accepts the applicant would return to reside in the family home (and she would be allowed to do so), and that any ‘plans’ for the applicant’s future, could be formulated after her return.

17. Be that as it may, the Tribunal accepts the applicant (or her family – and with whom she speaks with approximately once per week) may suffer some limited financial or other loss should the applicant’s visa be cancelled. I also accept the applicant’s parents would be disappointed with her should she be required to return to Nepal without obtaining degree qualifications in Australia.

18. Next, the migration agent said the applicant was “progressing positively towards her diploma” but there were “issues with her live-in relationship fiancée”. The applicant again became depressed and she “lost track of her studies and was struggling with the Diploma”. When discussed at hearing, the applicant said she was not engaged to her boyfriend (a Nepalese citizen who had resided in or around Kathmandu), but that relationship was ongoing. She also conceded that there were no problems with her partner that were relevant to this hearing. However, the Tribunal understands the applicant’s partner had travelled to Australia and successfully completed a Bachelor degree in IT. He had then attempted to obtain a permanent visa in Australia but he ‘did not have the points’. He had therefore obtained a further Student visa and was presently studying for a Masters Degree in IT. The Tribunal understands that if the applicant’s visa is cancelled, it may be that she could be (at least temporarily) separated from her current boyfriend.

19. Regarding the circumstances in which the ground of cancellation arose, the delegate summarised the applicant’s response to the NOICC as follows:

    ·     the applicant said she had “gone through a lot of hardship and trouble in the past months”

    ·     she referred to issues beyond her control, including the earthquake in Nepal, which had caused her emotional distress

    ·     the applicant contacted her family and was advised that though the earthquake had caused a great deal of damage, her family were physically well despite there being a shortage of food and lodging

    ·     the applicant was granted three months compassionate leave from her then studies

    ·     the applicant wished to return to Nepal to be with her family but they told her they believed it was not safe and they wished her to remain in Australia

    ·     the applicant is an emotionally weak and sensitive girl and the decision of her family that she remain in Australia caused her even more emotional stress and sent her into depression

    ·     the applicant had meant to recommence studies in October 2015, but she did not enrol as she was not then mentally prepared for her studies

    ·     she was unable to recover emotionally and mentally during the three-month deferment and had subsequently failed to continue her studies

    ·     the applicant blames the earthquake for having damaged her life and her ambitions and that it had caused her to give up on her future, dreams and ambitions. She was also lost and did not care for anything

    ·     as the applicant was depressed and “hysterical”, she could not ask her parents for financial support

    ·     the applicant had been attending a psychiatrist to help her overcome her anxiety and now feels more optimistic and positive

    ·     the applicant’s parents are willing to financially support her further study

    ·     the applicant is now planning to ‘fast track’ her studies so she can complete her course/s before her visa expires

    ·     the applicant also acknowledged her mistakes and now asks for a second chance.

20. The applicant’s psychologist said her mental state was impacted due to the stress surrounding the earthquake in Nepal and she then became depressed and unable to concentrate on her studies.[2]

    [2] Department – from folio 28.

21. At hearing, the Tribunal asked the applicant where her parents (and two sisters) resided in Nepal. She had explained they resided some five hours by bus, south of Kathmandu. The country information stated:

    2.5 … a 7.9 magnitude earthquake … struck Nepal on 25 April 2015 (and subsequent aftershocks), which killed an estimated 8,891 people and injured 22,302. …
    .....
    

    [3] DFAT Country Information Report, Nepal, 21 April 2016.

    2.9 …  The earthquake of April 2015 and the subsequent aftershocks had a negative impact on the economy. … [3]

22. The Tribunal also noted the two 2015 Nepal earthquakes had occurred towards the north-west and the east of Kathmandu.[4] The Tribunal then said it may presume the applicant’s family (some five hours by bus south of Kathmandu) suffered no physical or financial harm (the applicant’s father was semi-retired and on-sold scrap metal in Nepal). The applicant conceded this was correct. She did say she had cousins in or around Kathmandu (though none were harmed), and she also said her family were ‘traumatised’ by the earthquakes (though they wished her to continue to study).

    [4] Though not necessarily an authoritative source, see ‘April 2015 Nepal earthquake’. WIKIPEDIA,

23. By migration agent submissions dated 27 March 2018[5] (and lodged with the Tribunal on 22 January 2019[6]), it was said the applicant enrolled in a Foundation Program leading to a Diploma of Business followed by a Bachelor of Business at UTS. The applicant had completed the Foundation Program and was enrolled for her Diploma Program but there was a major earthquake in Nepal. This caused her emotional stress and she had “deviated from her studies”. She was then provided compassionate leave for three months (evidence attached). She had wished to return to Nepal to be with her parents but they had said that she should remain in Australia continue her studies. Further that it was dangerous in Nepal (at hearing, the danger was referred to as damage from the earthquake). The applicant then suffered further depression and her COE from UTS had been cancelled. She then ceased attending any class but after receiving the NOICC, she realised she was wrong in not attending her classes. She then enrolled for a Diploma of Business followed by a Bachelor of Business with Elite Education Institute.

    [5] Tribunal – from folio 52.

    [6] Tribunal – folio 55.

24. The migration agent then said the applicant did not commence her Bachelors degree. Now however, she wants to complete her Bachelors degree before she returns to Nepal. The agent said the applicant had successfully completed “some units of her Diploma”. She is currently enrolled for her diploma and intends to complete her Bachelors. It was said she came from a “decent family” and they are financially capable of supporting her. Her family have also been attempting to “cheer her up and motivate her to complete her studies before she returns” to Nepal. The agent said the applicant was a “vibrant person with a bright future”. It was only her mental issues which prevented her from progressing in her studies.

25. Evidence lodged by her migration agent included:

    ·COE from the UTS for a Bachelor of Business – course start date 7 March 2016

    ·COE from the UTS for a Diploma of Business – course start date 10 February 2015

    ·an email from the Student Centre dated 17 June 2015 referring to a request for information by the applicant’s education provider

    ·an academic record from the UTS dated 9 January 2015[7]

    ·the applicant’s passport

    [7] Tribunal – folio 46.

26. In her response to the NOICC, the applicant had also provided:

    ·     COE for Diploma of Business created 21 November 2016[8] (after the NOICC was issued)

    [8] Department – folio 36.

27. At the Tribunal hearing, the applicant explained that the applicant’s academic performance was not sufficiently strong to commence a Bachelor course. Therefore, she commenced the Diploma of Business (said to last for one year), either late 2016 or early 2017. She had ceased her study in early 2018 as around that time, a new teacher had taken over one of her subjects and though she was provided with an opportunity to re-submit assignment’s, she had failed that subject (though other students had passed). Consequently, the applicant did not successfully complete the Diploma of Business course.

    ·     COE for Bachelor of Business (Professional Accounting) created 21 November 2016[9] (after the NOICC was issued)

    [9] Department – folio 37.

28. Due to not having completed her Diploma of Business course, the Tribunal understands the applicant said her COE for the Bachelor of Business (Professional Accounting) was cancelled.

    ·     Doctor’s referral to psychologist dated 17 November 2016[10] (after the NOICC was issued)

    ·     Letter from psychologist dated 21 November 2016[11] (after the NOICC was issued)

    ·     UTS Foundation Studies – academic record for 2014[12]

    ·     Email from UTS Academic advisor regarding deferral for semester two, 2015 – dated 16 June 2015

    ·     Email from UTS Student Adviser advising further documents needed – no date shown but printed on 23 November 2016[13]

    [10] Department – folio 46.

    [11] Department – from folio 45.

    [12] Department – folio 42.

    [13] Department – folio 41.

29. On 15 December 2015, the applicant’s then education provider (the University of Technology, Sydney), had notified the Department the applicant had ceased her studies and was no longer enrolled. At hearing, the applicant’s agent referred to the difficulties of obtaining a ‘Letter of release’ from an education provider, which may then prevent them from seeking a COE from a (words to the effect) less recognised education provider. However, based on the evidence before it, the Tribunal understands the applicant lost her COE for the aforementioned Bachelor of Business (Professional Accounting) (at Elite Education Institute), due to having not successfully completing the Diploma of Business.

30. At hearing, and after noting the applicant’s evidence of her activity after the NOICC was issued, the applicant explained she had been distressed and distracted, but the evidence before the Tribunal indicated her academic progress was not sufficient for her to pursue a Bachelor’s course in Australia. The agent felt the applicant would now be able to successfully undertake a Bachelor’s degree, but as discussed at hearing, given the applicant failed to successfully complete a Diploma in early 2018, the Tribunal may not (and now does not) accept the applicant had yet demonstrated a capacity to engage in a Bachelor’s course in Australia.

31. Next, the applicant conceded that she did not seek any further leave or deferral from her studies in Australia (after her three months compassionate leave ceased). When asked why, she said she was (ie) depressed. Submissions included that as a result of the Nepal earthquake, the applicant was distressed and or traumatised, and that she attended a psychologist in Australia. When discussed at hearing, the applicant conceded that she sought no further medical assistance from the psychologist and had only seen the psychologist on one occasion. The Tribunal is not satisfied the applicant’s distress arising from the Nepal earthquake plausibly explains why she materially ceased her studies. The Tribunal notes the applicant did obtain three months compassionate leave, but her distress arising from the earthquake in Nepal, did not prevent her from working since early 2015. When discussed at hearing, her migration agent confirmed the applicant was considered a reliable worker by her employer. If the applicant was able to establish herself as a reliable worker (four years as a cook at a restaurant), then the Tribunal is not satisfied her distress arising from the Nepal earthquake, explains why she was unable maintain her enrolment in a registered course of study.

32. Next, there is no evidence before the Tribunal that the applicant has been uncooperative with either the Department or the Tribunal. There is no evidence before the Tribunal that any other person’s visa would or may be cancelled if the applicant’s visa is cancelled. There is no evidence before the Tribunal that Australia’s international obligations would or may be breached if the applicant’s visa is cancelled.

33. Next, if the applicant’s visa is cancelled she would become an unlawful noncitizen and liable to detention under s.189 and removal under s.198 of the Act. However, based on the evidence before the Tribunal, I am not satisfied the applicant would be subject to indefinite detention. I also accept the applicant would be able to temporarily retain her Bridging visa in order to remain in the community to finalise her affairs prior to departing Australia.

34. The Tribunal also notes that if the applicant’s visa is cancelled she would be subject to s.48 and would have limited options to apply for further visas in Australia.  She would also be subject to PIC 4013; meaning she might not be granted a temporary visa for three years from the date of cancellation.  

1. The Tribunal notes that the purpose of the grant of a Student visa is to allow non-citizens to travel to Australia to study in an appropriate course. The applicant did not do this. Notwithstanding those of the applicant’s claims that I have accepted above, I do not accept there are any compelling circumstances that should prevent the Tribunal from exercising the discretion to cancel the applicant’s Student visa.

2. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

   DECISION

3. The Tribunal affirms the decision to cancel the applicant’s Class TU 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.