Ranabhat (Migration)

[2019] AATA 1041

Ranabhat (Migration) [2019] AATA 1041 (26 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Arpana Ranabhat

CASE NUMBER:  1827584

HOME AFFAIRS REFERENCE(S):           BCC2018/1398353

MEMBER:Adrienne Millbank

DATE:26 March 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 26 March 2019 at 2:27pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – ability to undertake courses successfully – motivation to study – father's health issues – length of non-enrolment – decision under review affirmed

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 19 September 2018 made by a Delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The applicant is a 23 year old citizen of Nepal. She first arrived in Australia on 19 January 2016 on a Student (Subclass 573) visa, enrolled to study Diploma of Business and Bachelor of Business courses in the higher education sector.

3. The Delegate cancelled the visa on the basis that the applicant did not meet condition 8202(2)(a). The Delegate found the purpose for which the visa was granted ended on 7 November 2017, the date the visa holder’s enrolment in the Higher Education Sector course was cancelled.  

4. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. The applicant appeared before the Tribunal on 14 March 2019 to give evidence and present arguments.

6. Adopting the procedures in s.359AA of the Act, the Tribunal informed the applicant that it had information that could lead or contribute, depending on her comments in response, to the decision under review being affirmed. The Tribunal advised that this information comprised her Provider Registration and International Student Management System (PRISMS) records showing her course enrolments and outcomes, and that these showed that her enrolment in her higher education (Bachelor of Professional Accounting) course was cancelled on 7 November 2017 for the reason of non-payment of tuition fees. The Tribunal advised the applicant that it also had information, recorded on the Departmental file, that she had been reported for working illegally, outside the conditions attached to her visa.

7. The Tribunal advised the applicant that the information was relevant because it suggested that she was not a genuine student and was using the Student visa system to maintain residence and work in Australia. The applicant was advised that she could seek an adjournment and consult with her agent before providing a response to this information, or at any time during the hearing. The applicant did not seek an adjournment.

8. The applicant was represented in relation to the review by her registered migration agent, who attended the hearing.

9. At the conclusion of the hearing the applicant through her representative sought an extension of time to provide further evidence to the Tribunal. The Tribunal granted an extension of time to 22 March 2019. Further evidence was received by the Tribunal on 14 March 2019, which the Tribunal has considered.

10. 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

11. 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?

12. 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).

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

14. The applicant confirmed at hearing that her enrolment in a Bachelor of Professional Accounting degree at Holmes Institute was cancelled on 7 November 2017; that she was not attending her classes; had not paid tuition fees; and was working full-time at this time. She did not dispute, in her response to the Department’s Notice of Intention to Consider Cancellation (NOICC), in her written submissions to the Tribunal and at hearing, that she was in breach of condition 8202 attached to her visa when her enrolment was cancelled. She stated that she understood the condition and the Delegate’s decision.

15. The applicant’s PRISMS records confirm that her enrolment was cancelled on 7 November 2017, for the reason of non-payment of fees. 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).

    Consideration of the discretion to cancel the visa

16. 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’.

17. The applicant acknowledged at hearing, and her PRISMS records show, that she has completed only one very short course of study, an eleven day course in English, during her three year stay in Australia. The PRISMS records show that her enrolments in a Diploma of Business, Bachelor of Business, and Bachelor of Professional Accounting were all cancelled.

18. The applicant claimed at hearing that she came to Australia for the purpose of obtaining qualifications in accounting, and that she did in fact attend some classes ‘at the beginning’. She claimed she had to drop out and work full-time to support her father financially, including paying for his surgery. She advised that from late 2016 she was too worried about her father’s health to be able to concentrate on her studies.

19. The applicant acknowledged that she was not enrolled in any course of study for over seven months, until 26 July 2018, and that she did not seek to enrol in a course of study until she received the NOICC and sought the help of a migration agent. The applicant said she obtained enrolment, a Vocational Education and Training sector Graduate Diploma of Management (Learning) course, with difficulty. She confirmed that this enrolment was cancelled when her Student visa was cancelled, but claimed she has continued to attend courses and complete her assignments even though she is not interested in the course as a career path. She advised that her intention, if she obtains a further visa or an extension of her Student visa which is is due to expire on 9 April 2019, is to return to higher education and obtain a Bachelor degree level qualification in the area of accounting.

20. The applicant advised that she could receive credit for completed units of her current studies, and that she anticipated completing the degree course that she wants to undertake by the end of 2020. Following the hearing, on 14 March 2019, the applicant provided a certificate from her course provider, Lifetime International Training College, confirming that the applicant has successful completed three units of her Graduate Diploma of Management (Learning) course. The Tribunal accepts that the applicant has demonstrated that she has the ability to study successfully in Australia.

21. The applicant confirmed that she has one sibling, a brother, who also lives in Brisbane, who also came to Australia on a Student visa; who studied cookery; who is ‘not yet’ a permanent resident; who is on a 457 visa; and who is working full-time. She said that her brother was unable to support her father and mother in Nepal financially because he ‘had bills to pay’ and was not as concerned about their father because he was not as close to him as she was. She claimed her father had been unable to support her financially in Australia, as originally intended, because he had to leave his employment when he fell ill, and sell his property.

22. Evidence was provided in the form of a letter from a doctor in a hospital in Nepal, signed on 25 October 2017, that her father had undergone surgery for rectal cancer. No information was provided about when this surgery occurred. In a written statement provided on 25 February 2019 the applicant stated that she learned in October 2016 that her father’s eyesight was deteriorating and he needed eye surgery, which the family could not afford; that she became distraught at this news; and that from this she time was unable to concentrate on her studies and decided to work full time.

23. The Tribunal asked the applicant why she had not returned home to her family when her father became ill, as her father could no longer support her financially, and she was not in any event attending her classes. The applicant claimed that her mother advised her not to return home; to concentrate on her studies. The Tribunal asked the applicant why she did not return home at least during a scheduled semester break to see her father. The applicant did not respond to the question. Later in the hearing she claimed she didn’t return home because she didn’t want to see her father in his situation of grave ill-health. The Tribunal notes that in her written submission of February 2019 the applicant described an intense love and attachment to her father, and claimed that ‘seeing my face makes him smile more’. She then claimed ‘if I go back, despite of seeing my face, I don’t expect to see that bright smile on his face. If I go back, there will be no one to look after him, to support him financially.’   

24. The applicant claimed she never told her mother, father or brother in Australia that she was not attending her classes and was working as a waitress in a hotel restaurant to pay for her father’s surgery. When the Tribunal asked the applicant where her mother thought the money was coming from, she responded that she only sent around $500 to her family every three weeks, so her mother thought the funds were from her part-time earnings. The Tribunal expressed surprise that her father, who was a politician in Nepal, was not in receipt of any sort of government support or pension; she advised that ‘it took a lot of time’ to process such things in Nepal.

25. The applicant confirmed that she never approached her course providers in person, by letter or email, even as a matter of courtesy, to excuse her absences, explain her circumstances, or seek advice or a deferral. She confirmed that she simply stopped attending and paying tuition fees. She confirmed also that she never approached the Department regarding the implications for her visa and stay in Australia of her changed circumstances. She claimed that her visa application was managed by an agent in Nepal, and that she was young and ignorant about the conditions attached to her visa. The applicant acknowledged that she knew she was supposed to study while on a Student visa, but thought she could take some months off without any consequences. She stated that she didn’t think the visa would be cancelled ‘so soon’. She stated that she thought she would receive more in the way of warning notices.

    Should the discretion be exercised?

26. The Tribunal does not doubt that the applicant has the ability to undertake the courses she has enrolled in and claims to want to complete, but is not satisfied, based on her study and immigration history, that she has the necessary motivation. At hearing the applicant spoke articulately and in excellent English, and presented as competent and capable. She has not however completed any course, except a very brief English course, during over three years in Australia. On her own acknowledgement she enrolled in a course of study unrelated to her original study intentions only after receiving a NOICC and advice from an agent, and only after eight months of non-enrolment during which she worked in a hotel.

27. Evidence was provided in the form of statements of transactions from the applicant’s bank account and snapshots of Vodafone transactions, that she sent around $510 a month, and sometimes twice a month, to Nepal, between October 2017 and July 2018. The Tribunal accepts that the applicant sent money home to her family while working in Australia. The Tribunal accepts that the applicant was concerned and worried by her father’s illness and frailty. The Tribunal notes however that the purpose of a Student visa is not to enable a visa holder to work in Australia so as to financially support family members back home.

28. The applicant claimed at hearing that she no longer needs to support her parents in Nepal, and now wants to remain for the purpose of completing the courses that she came to Australia to study. She said she plans to seek employment as an accountant after completing these courses in late 2020. She said she didn’t want to disappoint her parents by returning home without the qualifications she came here to obtain. Her representative advised that there is social stigma attached to returning to Nepal in such circumstances.

29. When the Tribunal asked the applicant how she would explain to her parents taking a further two years in Australia to obtain her qualifications, as her visa would have expired in any event early in April 2019 and they would be anticipating her return, the applicant stated that she intends to tell them ‘the truth’ regarding her enrolment and visa cancellations. The Tribunal notes that the applicant would experience emotional hardship confronting her parents and seeking financial support for her further studies whether or not the visa is cancelled.

30. The Tribunal is unconvinced by the applicant’s claim to have been too young and ignorant to accept responsibility to comply with her visa conditions. The Tribunal finds implausible her claim that she did not discuss her visa and work situation with her brother, who lives in the same city in Australia and entered Australia as a student before her. The applicant acknowledged at hearing that the circumstances in which her visa was cancelled were not, in hindsight, beyond her control. She stated that she ‘made a mistake’. She acknowledged that she could have talked to her course providers and the Department; that she could have sought a deferral; and that she could and should have returned home at least to visit her father.  She said she ‘got caught in a gap’. She explained several times that she did not believe that there would be consequences ‘so soon’ for her visa and stay in Australia from her failure to attend her courses and pay her tuition fees; her non-compliance with her visa conditions.

31. Should the applicant’s visa be cancelled she would be without a visa and subject to a period of exclusion from applying for further visas. There is no information before the Tribunal to indicate that the applicant would not be granted a Bridging E visa to enable her to stay out of detention while organising her departure. There is no information before the Tribunal to indicate that the applicant has any reason to fear or not want to return home, apart from her claim that her parents would be disappointed if she returns without any overseas qualifications, and that she can earn more in Australia.

32. The applicant was not enrolled in a course of study for over eight months, and enrolled in a course only in an effort to prevent cancellation of her visa. She further breached her visa conditions by working full-time. The Tribunal finds the extent of the applicant’s non-compliance with her visa condition significant.

33. Although the applicant responded to her NOICC, her behaviour and attitude towards her course providers and the Department, whereby she simply stopped attending classes, worked full-time and did not expect there to be consequences ‘so soon’ for her visa, does not weigh in her favour.

34. The Tribunal has considered that the applicant might experience emotional hardship through disappointing her parents by returning without an Australian qualification, and might experience hardship from being subject to a period of exclusion from Australia.

35. Considering the circumstances as a whole, the Tribunal finds the reasons to cancel the visa outweigh considerations in favour of exercising the discretion not to cancel the visa, and concludes that the visa should be cancelled.

    DECISION

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

    Adrienne Millbank
    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.