Regmi (Migration)

[2022] AATA 3648

Regmi (Migration) [2022] AATA 3648 (21 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Binita Regmi

REPRESENTATIVE:  Mrs Namrata Chhetri (MARN: 1803289)

CASE NUMBER:  2202584

HOME AFFAIRS REFERENCE(S):          BCC2019/5411647

MEMBER:Wendy Banfield

DATE:21 September 2022

PLACE OF DECISION:  Canberra

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

Statement made on 21 September 2022 at 3:16pm

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – applicant didn’t maintain enrolment in a registered course of study – applicant did not comply with condition 8202  –mental health issues – decision under review affirmed

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 17 February 2022 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 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the visa holder did not comply with subclause 8202(2)(a) of condition 8202 attached to their visa. 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 4 August 2022 to give evidence and present arguments.

4. The applicant was represented in relation to the review.

   Background

5. The applicant is a citizen of Nepal and is currently 22 years old. She arrived in Australia holding of a Subclass TU500 Student visa that was granted on 22 June 2018. The applicant was enrolled in a Bachelor of Nursing degree at University of Technology Sydney (UTS) but her enrolment was cancelled on 16 November 2018. The applicant’s Student visa was cancelled on 9 February 2022.

6. The applicant provided the following submissions in support of the application:

   ·     Passport biographical information.

   ·     Applicant’s Statement of Purpose dated 3 August 2022.

   ·     Letter of offer to the applicant from Queensford College dated 10 June 2022.

   ·     Confirmation of Enrolment (COE) for a Certificate IV in Aging Support from 31/10/2022 to 29/10/2023.

   ·     COE for a Diploma of Nursing from 22/01/2024 to 25/01/2026.

   ·     Report of Psychologist Stephen Sutton dated 6 June 2019.

   ·     Email to the applicant from Australasian International Academy regarding a term break in 2020.

7. The Tribunal also considered the evidence provided to the Department prior to the visa cancellation as follows:

   ·     Email response to the Notice of Intention to Consider Cancellation dated 17 March 2020.

   ·     COE for a Certificate III in Early Childhood Education and Care from 6/04/2020 to 4/04/2021.

   ·     COE for a Diploma of Early Childhood Education and Care from 5/04/2021 to 3/04/2022.

   ·     Report of Psychologist Stephen Sutton dated 6 June 2019 (duplicate submitted to the Tribunal).

   Evidence at the hearing

8. At the Tribunal hearing the applicant confirmed she had been enrolled in a UTS Foundation course leading to a Bachelor of Nursing. She said when she first arrived in Australia, she had been accommodated at a homestay initially but moved out to live with friends. The applicant explained that after her arrival, her mother and father in Nepal experienced difficulties due to her father having an affair. The applicant said she was struggling and did not have anyone to help her. She said she “got lost” due to her mental health which led to her enrolment being cancelled. This was because she was not attending college. The applicant claimed she had not realised she could get another enrolment.

9. According to the applicant she stayed at home and was struggling mentally. She said she was not working initially but then was just working and “going outside”. The applicant repeated she did not have anyone to help her, and then she received notice of her visa being cancelled. The applicant said it had taken her several months to recover, but now things are good between her parents and she attended a psychiatrist to be able to process things mentally.

10. The applicant agreed her enrolment to study had been cancelled on 16 November and that the Department sent her a Notice of Intention to Consider Cancellation of her student visa on 3 March 2020. The applicant claimed that during the period of non-enrolment she was struggling and stayed at home. The applicant was asked how she spent her time for more than a year. She said she “did nothing” but then said she was working and staying at home. She was asked how she supported herself and the applicant repeated that she “did nothing really”. When it was put to her that the period of non-enrolment was a long time, the applicant said it passed quickly. She agreed it was her responsibility to ensure she maintained enrolment but said it was in the back of her mind, and then claimed she had only come to Australia to study. 

11. The applicant agreed she had enrolled in childcare courses previously but said after a few weeks she did not continue because she lost her job due to COVID. She referred to COVID affecting her family in Nepal and that she could not ask her father for help. Regarding her current intentions, the applicant said she has a letter of offer to study a certificate course and Diploma of Nursing. She explained she is currently holding a Bridging Visa E which does not allow her to study, so she has been unable to enrol. The applicant then claimed that previously she was “struggling mentally”, “did not know the consequences”, “did not know anything” and “did not have any help”. She said that now she is in a better place and able to “fulfil her dreams”.

12. The Tribunal put to the applicant that the Department had found there were grounds to cancel her visa. The applicant agreed she was required to maintain enrolment and since she did not do that, there were grounds to cancel her visa.

13. The Tribunal advised the applicant it was accepted she had come to Australia to study. When asked if there were any compelling reasons why she needed to remain in Australia, the applicant repeated she wants to fulfil her dreams. She said she will return to Nepal with a degree which will help her career. The applicant declared that other than not being enrolled, she has complied with all other visa conditions. Regarding any hardship that would result, the applicant again referred to her dreams being shattered. She said she has been through a lot of tragedy and mental health struggles and she can do better. The Tribunal asked the applicant why her parents difficulties caused her such distress as she has claimed, and she stated her family had been loving and they were dependent on her father. She referred to herself and her mother being “broken”. The Tribunal asked the applicant why she did not return to Nepal until she was able to resume her studies. She said she was her mother’s only hope but she had to tell her eventually that she was not studying. The applicant clarified that she did not continue to study the childcare courses she was enrolled in because she lost her job due to COVID and her father’s business in Nepal was affected for the same reason. It was claimed the applicant’s father is able to support her studies now.

14. The applicant agreed there are no consequential cancellations if her visa is cancelled. The Tribunal put to the applicant the legal consequences of visa cancellation and the applicant said she understood. The applicant referred to four years being wasted and that she cannot go back to Nepal with nothing. The applicant indicated there are no impediments to returning to Nepal and she is planning to go back after completing her studies.

15. The applicant was invited to make any further submissions in support of her application for review. She asked the Tribunal to consider her mental health problems and her “only dream”. The applicant was asked if she sought any help for her mental health and she said she spoke to friends, she later saw a psychologist and is doing better now. She said she is working in the hospitality industry at present. According to the applicant, she wishes to study in Australia for three years to complete a Diploma of Nursing and become and enrolled nurse. She is no longer planning to study a Bachelor of Nursing. The applicant said she did not seek any assistance about her visa issues but did attend a psychologist who provided a report.

16. The applicant’s representative stated the applicant has been clear and precise in her evidence. She said the applicant is keens to study and will enrol once she is able to. It was submitted the applicant’s mother had a severe heart condition and her father brought another woman into the house. In addition, the applicant’s father had financial issues. The representative said the applicant is working in hospitality and wants to fulfil her dreams. It was submitted the applicant will not breach any visa conditions in future.

    Applicant’s written statement – 3 August 2022

17. The applicant made the following claims in her written statement provided to the Tribunal: She intends to study in the healthcare industry due to a skill shortage in the world, and in Nepal; she was studying a UTS Foundation course and Bachelor of Nursing after being granted her visa on 22 June 2018; her mental and physical health was impacted by personal problems at home; she was depressed and ready to return to Nepal but her mother told her to finish her studies; her family situation has settled down and she is now feeling better and motivated.

18. The applicant included an explanation of why she did wants to study in Australia rather than Nepal and why she has chosen Queensford College; the benefits of studying a Certificate IV in Aging support and a Diploma of Nursing, including the skills that will be acquired; her aim for the future which includes returning to Nepal and working in a hospital. The applicant declared her father will support her financially and stated the requirement to understand visa conditions. The applicant requested her visa not be cancelled to allow her to study before returning to her home country to begin a career in healthcare.

19. 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

20. 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 (Cth) (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?

21. 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)

    ·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than, the course in relation to which the visa was granted: 8202(2)(b)

    ·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).

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

23. The applicant had been enrolled to study a University Foundation course at UTS followed by a Bachelor of Nursing. The applicant’s enrolment was cancelled when she did not continue the course. The applicant provided reasons why she had discontinued her studies at UTS. She did not dispute information put to her in the Department’s Notice of Intention to Consider Cancellation that she had not been enrolled to study from 16 November 2018 to 3 March 2020. On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course. Accordingly, the applicant has not complied with condition 8202(2)(a).

    Consideration of the discretion to cancel the visa

24. 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

25. The applicant arrived in Australia to study a university foundation course and a Bachelor of Nursing and was enrolled for that purpose. She commenced her studies but did not complete the courses. On the evidence before it, the Tribunal is satisfied that the applicant’s original intention to travel to and stay in Australia was to study.

26. During the Tribunal hearing the applicant was invited to make submissions regarding any compelling need to remain in Australia. The applicant made a number of statements about studying and gaining qualifications in Australia being her “dream”, her last chance and necessary to begin a career in healthcare in Nepal. The Tribunal accepts the applicant may wish to recommence studies while onshore but is not satisfied the applicant has a compelling need to study in Australia.

27. The Tribunal considered the applicant’s submission but is not persuaded she has demonstrated a powerful or convincing reason for needing to stay. For these reasons, the Tribunal is not satisfied the applicant has a compelling need to remain in Australia.

    ·     the extent of compliance with visa conditions

28. There is no evidence before the Tribunal that the applicant has not complied with other visa conditions.

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

29. When the applicant was asked about any hardship that would be caused by her visa being cancelled, she referred in her oral evidence to her dreams being shattered. She told the Tribunal that she has been through a lot of tragedy and mental health struggles but believes she can do better. Although the applicant did not point to specific financial, psychological or emotional hardship if her visa is cancelled, the Tribunal understands the applicant will certainly be disappointed if she does not obtain any qualifications after spending four years in Australia.

30. The Tribunal is mindful that the cancellation of the visa means the applicant could become an unlawful non-citizen liable for detention and removal from Australia. Moreover, the applicant would be subject to s.48 of the Migration Act and consequently would have limited options to apply for further visas in Australia. The Tribunal has assessed the claims and evidence in the applicant’s case and has accepted there will be a degree of hardship to the applicant if her visa is cancelled, however, the intended consequences of the legislation do not outweigh the other considerations in this case.

    ·     circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. 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

31. The applicant’s visa was cancelled because she remained in Australia as the holder of a student visa but did not continue her studies for a period of 15 months. The applicant gave reasons why she says this occurred. In her written response to the Department and the Tribunal the applicant claimed there were family difficulties in Nepal after she arrived in Australia and that this led to emotional distress. At the Tribunal hearing the applicant advised she could not continue her studies due to mental stress as a result of her parent’s relationship issues. The applicant agreed she did not return to Nepal until she could resume her studies or seek formal advice about her visa status in Australia. The applicant said she attended a psychologist 

32. The applicant submitted a report to the Department and to the Tribunal from Psychologist Stephen Sutton dated 6 June 2019. The report recounts the applicant’s explanation of the issues that affected her ability to study, as reported by her. The psychologist does not undertake an assessment of the issues presented; the report merely sets out the applicant’s claims that she says led to her discontinuing her studies. The Tribunal considered the psychological evidence but does not give it weight in the applicant’s favour. The Tribunal finds it does not demonstrate the circumstances in which the grounds for cancellation arose were beyond the applicant’s control.

33. The conditions of the applicant’s student visa required her to maintain enrolment which is a strict requirement, and it was her responsibility as the visa holder to ensure she did so. Therefore, the Tribunal finds the circumstances in which the grounds for cancellation occurred do not weigh in favour of the applicant in considering whether to exercise the discretion to cancel his visa.

    ·     past and present behaviour of the visa holder towards the department

34. There is no evidence before the Tribunal to indicate the applicant has not cooperated with the Department. The Tribunal places some weight in the applicant’s favour in this regard.

    ·     whether there would be consequential cancellations under s.140

35. There is no evidence before the Tribunal that there would be any consequential cancellations under s.140 of the Act.

    ·     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

36. The cancellation of the visa means that the applicant could potentially become an unlawful non-citizen liable for detention and removal from Australia. The applicant would be subject to s.48 of the Migration Act which would limit her options for applying for a visa. In future the applicant would also have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. There is no evidence to indicate the applicant may be subject to indefinite detention as a consequence of cancellation. The Tribunal has assessed the applicant’s claims and evidence and considers the mandatory legal consequences of cancellation do not outweigh the other considerations in this case.

    ·     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

37. The Tribunal considered whether the visa cancellation would lead to the applicant’s removal in breach of Australia’s non-refoulement obligations, that is, removing a person to a country where the person faces, persecution, death, torture, cruel, inhuman or degrading treatment or punishment. The applicant stated she is planning to return to Nepal and that there are no impediments to her doing so. On the evidence before it, the Tribunal is not satisfied Australia’s non-refoulment obligations would be breached if the applicant’s visa is cancelled.

38. The applicant did not claim that there are children in Australia whose interests could be affected by the cancellation.

    ·     if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

1. The Subclass 500 Student Visa is not a permanent visa.

   ·     any other relevant matters

2. The representative stated at the hearing that the applicant had been clear and concise in her evidence, but the Tribunal does not agree with that submission. The Tribunal found the applicant was vague and evasive when asked about her activities and means of support for 15 months when she was not enrolled to study. She claimed she stayed at home and mostly “did nothing” at the relevant time and repeatedly claimed to be “stressed” and “struggling”. She also claimed to have had no help and that she was unaware of the consequences of not studying. However, the applicant conceded she was employed for at least some of the time. The Tribunal finds the fact that the applicant did not immediately seek advice about her circumstances if she was having difficulty studying, and the extended period she remained in Australia without being enrolled as required weigh against her in the Tribunal’s assessment of whether the exercise its discretion to cancel her visa.

   Conclusion

3. The Tribunal has considered the applicant’s circumstances individually and cumulatively. Although the Tribunal finds there are some aspects in the applicant’s case that weigh somewhat in her favour, on balance, the Tribunal finds that most considerations do not weigh in her favour. The Tribunal is not satisfied the issues encountered by the applicant outweigh the grounds for the visa to be cancelled.

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

   DECISION

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

   Wendy Banfield
   Member

   
   

   ATTACHMENT

   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.