Sapkota (Migration)

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 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.
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; and
othe 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.
The applicant also provided a statutory declaration dated 4 November 2021, in which he stated:
·He came to Australia in March 2018 and studied and completed his course for the first 2 years.
·His passion drove him toward the food industry and he started working in a kitchen.
·He enrolled in a Commercial Cookery course shortly after he completed an Accounting course.
·March 2020 was an unprecedented time. He was laid off his job and missed the chance to see his 4 year old son before borders closed. He started to lose grip over his study, personal life and health.
·He started working in the aged care sector kitchen as a chef and most of the time he ran the kitchen.
·After some time he was eligible for Recognition of Prior Learning. He worked for cafes, restaurants to aged care and food production companies. He enjoyed what he learned in both school and work places.
·His wife found passion for the food industry and wanted to study as well. She started to study in the same college as him.
At the time of responding to the NOICC, the applicant provided documents including but not limited to the following:
·InPsych 2020 article COVID-19 fear in domestic and international university students, outlining poorer mental health in international students compared to domestic students, dated October/November;
·Web article from Australian Institute of Health and Welfare, COVID-19 and the impact on young people , outlining the effects of the pandemic on young people, dated 25 June 2021;
·Letter of Employment dated 4 November 2022 from Ms Nicolette Ng of Temp & Contracting NSW confirming the secondary applicant has worked for Hastings People on a casual basis since 29th August 2021;
·Secondary applicant’s CoE for Certificate IV in Commercial Cookery created on 8 November 2021;
·Article dated 29 April 2022 No one seems to listen: Urgent support needed to solve worker shortage, hospitality and small business leaders say outlining skill and worker staff shortages in businesses;
·News report from Nine.com.au, Fears some hospitality businesses unable to open for Christmas amid staff shortages reporting on staff shortages, dated 30 August 2022;
·Sydney Morning Herald article dated 22 October 2022 Turning point: Is the hospitality worker shortage starting to ease? detailing improvement in skill and worker staff shortages in businesses; and
·World Health Organization article, titled “#HealthyAtHome - Mental health”, outlining how to care for our mental health during COVID-19.
Evidence at hearing
The Tribunal adopted the procedure in s 359AA of the Act to put to the applicant information from a copy of his enrolment record from the PRISMS database, a copy of which is on the Tribunal file. The Tribunal explained to the applicant what the PRISMS database is and the relevance of the records to the review before the Tribunal. The Tribunal put to the applicant that according to the information from his PRISMS enrolment record, he was enrolled in the following courses of study:
a.He was enrolled in a Diploma of Accounting which he finished on 6 October 2019;
b.He was enrolled in an Advanced Diploma of Accounting which he finished on 12 July 2020;
c.He was enrolled in a Certificate IV in Commercial Cookery which was cancelled on 26 July 2021 due to non-payment of fees; and
d.He was enrolled in a Diploma of Hospitality Management which was cancelled on 26 July 2021 due to non-commencement of studies.
The Tribunal explained to the applicant that this information was relevant because it indicates that from 26 July 2021 until he received the NOICC, he did not maintain enrolment in a registered course. The Tribunal explained that this information may be relevant to assessing whether he breached the conditions of his student visa by not maintaining enrolment in a registered course of study. The Tribunal explained that the information may also be relevant in considering the discretion to cancel the student visa, including in considering his purpose for remaining in Australia.
The Tribunal explained to the applicant the consequences of relying upon the information. The Tribunal confirmed that the applicant understood the relevance and consequences of the information being relied on. The Tribunal asked the applicant whether he had any comments in relation to his PRISMS enrolment records. The applicant told the Tribunal that he agreed with the information in PRISMS.
The Tribunal asked the applicant about the information provided in the NOICC response in relation to the difficulties he experienced as a result of the COVID-19 pandemic. He said the pandemic made everything “blurry”. He said he lost his job in a café and it was very difficult during the first few weeks after he lost his job. He said losing his job and the pandemic lockdowns were too much for him and he fell apart. In response to the Tribunal asking whether he sought medical assistance, the applicant said he did not seek assistance and preferred to treat himself by meditating.
The applicant was a poor historian in relation to his employment history. He told the tribunal he worked in the aged care sector in 2018, 2019 and 2020. He said he was laid off for 4 to 5 months around March 2020 and started working in the aged care sector again around August/September 2020. The applicant told the Tribunal that in September 2021 he commenced working for a food production company.
The applicant told the Tribunal that he had obtained a visa for his young son to travel to Australia in 2018 and in 2020 and on both occasions the visa expired before his son could travel here. His son did not travel to Australia in 2018 (reason not given during the hearing) and in 2020 the visa was granted in February 2020, just before the borders closed. He said his son has not travelled to Australia yet because he (the applicant) cannot travel.
The Tribunal put to the applicant that he would have known from 26 July 2021 that he was no longer enrolled in a course and was not abiding by the conditions of his visa. In response, the applicant conceded that he was aware of his non-compliance but said he was not functioning well mentally. The Tribunal asked the applicant whether he contacted the Department when his enrolment circumstances changed. He said he did not contact the Department because things were changing and he was just about to apply for another visa when he received the NOICC. The Tribunal asked him whether he contacted his education provider to seek a deferment of study on compassionate grounds. In response, he said he tried talking to his education provider a few times but did not request a deferment because he had paid his fees and because he received bad advice.
The Tribunal referred the applicant to the NOICC response which stated that the change from face-to -face to online course delivery “jeopardized the learning method”. In response he said that online classes were “too much”. He said not being able to go anywhere was difficult and Cookery is not theoretical so he didn’t learn anything in online classes.
When asked about the purpose of his travel to Australia, the applicant told the Tribunal that he came to Australia and studied Accounting because he is fond of business .He said he owned a kitchen restaurant in Nepal and when he came to Australia he was mesmerised by the food industry. In response to the Tribunal asking whether he has a compelling need to remain in Australia, the applicant said he wants to complete his Cookery studies because the qualification will provide opportunities for him to work with the best chefs.
When asked about the hardship that may be caused by cancellation of the visa, the applicant said he would suffer mental and psychological hardship because he wanted a better future for his family and if the visa is cancelled they will be back to where they started. When questioned about whether there would be any other hardship, the applicant said there would be no other hardship.
Ms Sapkota told the Tribunal that the instability at work and many things led to the cancellation of the visa. The Tribunal asked her to provide more information about these things however she said they are hard to explain and provided nothing further. Ms Sapkota told the Tribunal that she and the applicant wanted a good education for their child.
The representative provided the following oral submissions:
·The applicant paid his fees and completed his initial courses.
·The applicant paid his fees and intended studying his new course however the pandemic affected him because he lost his part-time job, had difficulty coping with technology (online classes) and suffered mental health issues.
·It is a difficult situation for the applicant to not see his young son.
·The applicant made mistakes and it would have been good if he had communicated with his education provider however when you go down mentally you cannot think of the best course of action.
·The applicant wants to return home with a qualification and experience in Australian style cuisine. He has been here 5 years and if his visa is cancelled he will return home empty handed.
The Tribunal has considered the evidence against each of the matters in PAM3 as referred to above.
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 purpose of the applicant’s visa was to enable him to study. The applicant was not enrolled in a course of study for a period of 15 months prior to the issuing of the NOICC. The Tribunal finds the applicant’s breach of condition 8202 to be significant because he was not engaging in the study for which his visa was granted and was not fulfilling the purpose of his travel to and stay in Australia.
The Tribunal questioned the applicant as to whether there was a compelling need for him to remain in Australia. In response, he said he wants to complete his Cookery studies. The Tribunal does not consider this constitutes a compelling need.
The applicant’s non-engagement in the study for which his visa was granted, and the absence of compelling reasons for him to remain in Australia, weighs in favour of visa cancellation.
The extent of compliance with visa conditions
The applicant has not complied with condition 8202 of his student visa because he has failed to maintain enrolment in a full-time registered course of study from 26 July 2021. There is no evidence before the Tribunal that he has not complied with the other conditions attached to his visa.
The applicant’s non-compliance for an extended period of 15 months from cancellation of his enrolment until the issuing of the NOICC weighs in favour of visa cancellation.
The degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The Tribunal accepts that the cancellation of the applicant’s visa will be disappointing to him he will not be able to complete his Cookery studies and as result he may suffer mental and psychological hardship. The Tribunal gives the hardship that may be caused to the applicant some weight against cancellation.

The response to the NOICC referred to the second named applicant having family members in Australia and her employment as compelling reasons not to cancel the visa. The applicant did not raise these matters at hearing however the Tribunal gives hardship in relation to these matters some weight against cancellation.
Circumstances in which ground of cancellation arose; whether the circumstances were beyond the visa holder’s control
The applicant’s visa was cancelled as a result of his failure to maintain enrolment. The applicant was not enrolled in a course for 15 months prior to the issuing of the NOICC. He told the Tribunal that this was due to the mental strain caused by the COVID-19 pandemic which caused him to lose his part-time job for 4-5 months, not allow his son to travel to Australia, change his course to online classes and be locked down for periods.
The Tribunal accepts that the COVID-19 pandemic caused the applicant emotional and financial hardship. The applicant’s evidence was that he did not seek medical assistance for his emotional hardship and the Tribunal notes that he was laid work off for 4 to 5 months around March 2020 and resumed working in the aged care sector around August/September 2020. He said in September 2021 he commenced working for a food production company. Therefore, the applicant maintained employment from August/September 2020 and was working at the time he ceased to be enrolled in a registered course. Therefore, despite the claimed emotional hardship, the applicant was able to maintain employment from around August/September 2020 onwards. This has strongly invited the Tribunal to consider that the applicant did not take condition 8202 seriously as a student visa holder.
PRISMS shows that the applicant’s enrolment was cancelled due to non-payment of fees. The applicant told the Tribunal that he and his partner were able to survive because they were supported by her family members. No further evidence was provided in relation to financial hardship however the Tribunal notes that the applicant’s evidence that he did not work for 4 to 5 months and accepts that this would have resulted in some financial hardship in 2020.
When the Tribunal put to the applicant that he would have been aware that he wasn’t complying with a condition of his visa during the 15 months he remained in Australia as the holder of a student visa and wasn’t studying, he said things were falling apart and changing and he was about to contact the Department to apply for a new visa. As noted, an extended period of 15 months passed before the NOICC was issued. It is the responsibility of visa holders to notify the Department of changes in their circumstances that affect their visa and remain compliant with visa conditions.
When asked whether he contacted his education provider to request a deferment of study on compassionate grounds, the applicant said he had paid his fees and had received bad advice and therefore he did not request a deferment.
In relation to the applicant’s difficulty in adjusting to online classes, the Tribunal notes that the change to online classes did not prevent him from being enrolled, however he preferred face-to-face classes. He said he did not learn much in online classes.
In relation to the applicant’s emotional hardship caused by his young son not travelling to Australia in 2020, the Tribunal notes that this was the second time the child had been issued a visa and that a visa issued in 2018 ceased before he was able to travel here. The Tribunal notes that the pandemic travel restrictions ended in October 2021.
The Tribunal finds that the breach did not occur in circumstances beyond the applicant’s control. The applicant’s enrolment was cancelled because he did not pay his fees. The Tribunal accepts that his loss of employment in March 2020 for 4 to 5 months was beyond his control however he was again employed by August/September 2020 and his enrolment was not cancelled until 26 July 2021. In addition, he had the remainder of 2021 and up until the NOICC issued on 21 October 2022 to rectify his enrolment. The applicant did not attempt to enrol in a course after 26 July 2021. He referred to suffering mental hardship due to loss of employment, border closures preventing his son from travelling to Australia and lockdowns, however as noted, he did not seek medical assistance and he was able to maintain employment from August/September 2020. The Tribunal finds there are no extenuating or compassionate circumstances in this case and this weighs in favour of visa cancellation.
Past and present behaviour of the visa holder towards the Department
There is no evidence before the Department that the applicant has behaved inappropriately with the Department and the Tribunal gives this factor no weight in its considerations.
Whether there would be consequential cancellations under s 140
The applicant’s partner is the secondary visa holder. Cancellation of the applicant’s visa means she will be subject to consequential visa cancellation of her visa.
The Tribunal accepts that there would be a consequential cancellation in this case. The Tribunal gives this factor some weight against exercising its discretion to cancel the visa.
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 Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained under s 189 and removed from Australia pursuant to s 198. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion. The Tribunal acknowledges the difficulty this would cause the applicant and gives this some weight against cancellation.
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
There is nothing to suggest and the applicant does not claim that Australia’s international obligations would be breached as a result of the cancellation and the Tribunal gives this factor no weight in its considerations.
Any other relevant matters
The Tribunal notes the articles and news reports provided at the time of responding to the NOICC. The Tribunal has addressed the applicant’s mental hardship due to the COVID-19 pandemic in these Reasons. In relation to a skill shortage in the hospitality sector, the applicant did not raise the issue at the hearing and the Tribunal does not consider it relevant to the whether the ground for cancellation is established and whether the visa should be cancelled.
The Tribunal is not aware of any other considerations in relation to the cancellation.
Conclusion
The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant has breached condition 8202 of his visa. The Tribunal considers the breach to be significant because the Tribunal has formed the view that the applicant was not fulfilling the purpose of his travel to and stay in Australia as he was not undertaking the study for which his visa was granted. The Tribunal has found that there are no extenuating or compassionate circumstances in this case and that the cancellation will not be in breach of Australia’s international obligations. The Tribunal accepts that the cancellation will not affect the second named visa applicant’s visa. The Tribunal is prepared to accept that some hardship may be caused by the cancellation and that there is nothing adverse known about the applicant’s past and present conduct towards the Department.
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 Kannis
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.

[2023] AATA 3234

23 September 2023

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