Sapkota (Migration) - [2023] AATA 3234

Sapkota (Migration) [2023] AATA 3234 (23 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Pabindra Sapkota
Ms Sharmila Thapa Sapkota
REPRESENTATIVE:  Mr Bhabani Prasad Oli (MARN: 0316616)
CASE NUMBER:  2217082
HOME AFFAIRS REFERENCE(S):          BCC2022/3706274
MEMBER:Christine Kannis
DATE:23 September 2023
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Class TU visa.
The Tribunal has no jurisdiction with respect to the other applicant.

Statement made on 23 September 2023 at 2:15pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – not fulfilling purpose of travel and stay – non-compliance for an extended period – emotional hardship – non-payment of fees – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202
CASES
Liu v MIMIA [2003] FCA 1170
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 11 November 2022 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s Subclass 500 (Student) visa under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that the first named visa applicant (the applicant) failed to comply with a condition of his 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.
A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.
For the purposes of the Tribunal’s jurisdiction under s 348 of the Act, the only decision that is before the Tribunal is the decision with respect to the applicant. The other visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s 140(1) of the Act. As no decision was involved in the visa cancellation under s 140(1), the Tribunal has no jurisdiction with respect to the other applicant.
The applicant appeared before the Tribunal by MS Teams video on 4 September 2023 to give evidence and present arguments. The Tribunal also received evidence from second named applicant, Ms Sapkota. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.
The applicant was represented in relation to the review.
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
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sapkota (Migration)

Details

AGLC: Sapkota (Migration) [2023] AATA 3234
Case: [2023] AATA 3234
Decision Date: 23 September 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Mr Sapkota, the holder of a Subclass 500 (Student) visa. The dispute concerned the cancellation of Mr Sapkota's visa by the Department of Home Affairs. The Tribunal was tasked with reviewing this decision.

The primary legal issue before the Tribunal was whether Mr Sapkota had breached condition 8202 of the Migration Regulations 1994. This condition requires a student visa holder to be enrolled in a full-time registered course and to maintain that enrolment. The Tribunal also had to consider whether, if a breach had occurred, the discretion to cancel the visa should be exercised.

The Tribunal found that Mr Sapkota had breached condition 8202(2)(a) as he was not enrolled in a full-time registered course from 26 July 2021, as evidenced by information from the Provider Registration and International Students Management System (PRISMS). While acknowledging the applicant's submissions regarding emotional hardship due to the COVID-19 pandemic, job loss, and family issues, the Tribunal concluded that these factors did not outweigh the seriousness of the non-compliance. The Tribunal affirmed the decision to cancel Mr Sapkota's visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 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? On 10 December 2020, the applicant was granted a Subclass 500 (Student) visa with condition 8202 attached. 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). The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a course: Liu v MIMIA[2003] FCA 1170. In the present case, the applicant’s visa was cancelled on the basis that the applicant was not enrolled in a full-time registered course. Evidence of confirmation of enrolment is accessible on the Provider Registration and International Students Management System (PRISMS), which is the computer system that registered providers must use to enter the information required under s 19 of the Education Services for Overseas StudentsAct 2000 (ESOS Act).[1] In particular, a ‘confirmation of enrolment’ means the information a registered provider must give under s 19 of the ESOS Act when a person becomes an accepted student of the provider.[2] [1] s 19(3) of the ESOS Act. The relevant computer system to enter this information for the purpose of s 19(3) of the ESOS Act is ‘PRISMS’, which is defined in the National Code 2018 as the system used to process information given to the Secretary of DET by registered providers. See also the Explanatory Statement to the Education Services for Overseas Students Regulations 2019 (Cth) (ESOS Regulations).[2] Migration Regulations 1994, reg 1.03 defines ‘confirmation of enrolment’ as a confirmation by a registered provider that the student is enrolled in a registered course as required by s 19 of the ESOS Act. The information from PRISMS shows that the applicant was not enrolled in a registered course from 26 July 2021. On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course from 26 July 2021 and the Tribunal finds that he breached condition8202(2)(a) of his visa.

Decision

Reasons for decision

The Tribunal recognises that the cancellation of the visa is a significant matter. However, on balance, and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.DECISION The Tribunal affirms the decision to cancel the first named applicant’s Class TU visa. The Tribunal has no jurisdiction with respect to the other applicant.Christine KannisMemberATTACHMENTMigration Regulations 1994…Schedule 88202(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.

Ratio Decidendi

Legal Principle Established

For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(b) exists. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa.Consideration of the discretion to cancel the visa 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 his representative, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, as set out below. On 21 October 2022, the Department of Home Affairs issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because he had ceased to be enrolled in a registered course from 26 July 2021 and had therefore failed to comply with condition 8202(2)(a) of his visa. Response to NOICC On 9 November 2022, the applicant responded to the NOICC and provided the following information in a submission from his registered migration agent:·The applicant applied for a subclass 500 visa with his partner as a dependent. ·The applicant was enrolled on Certificate IV in Commercial Cookery with a commencement date on 10 August 2020. He ceased the course around July to September 2021 largely due to being mentally affected by the COVID-19 pandemic. He lost his job and his 4-year-old son was not able to travel to Australia when borders closed. It caused a negative impact on his life and resulted in his lack of interest in his studies, health and professional life. He has faced several periods of mental and emotional stress mainly after being unemployed which brought his self-esteem down. ·Since arriving in Australia the applicant worked for restaurants, cafes and food production companies until the pandemic happened. ·The applicant was initially enrolled in a course conducted face-to-face but this changed to the online classes and it jeopardized the learning method.·Despite the employment and emotional challenges, the applicant had the secondary applicant to support him. She kept her work and has developed a passion for the food industry which caused her to enrol in a Certificate IV in Commercial Cookery on 10 January 2022. She has deferred her studies due to the 8201 visa condition which allows her to study for a maximum of three months. She would like to pursue her career as a chef and intends to apply for a Student visa so she can study the course. ·The applicant was unable to attend classes due to compelling and compassionate reasons. ·Compelling reasons not to cancel the visa are:othe secondary applicant has family ties in Australia which are her sister and brother-in-law who are permanent residents and her brother and sister-in-law who are temporary residents; andothe secondary applicant is employed at Chef Fresh Pty Ltd Coles Groups as a food processor. She is professionally happy with her job and aims to professionalize in the field of cookery.