SHAHI (Migration)

[2020] AATA 4827

SHAHI (Migration) [2020] AATA 4827 (18 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr SUDARSHAN RAJ SHAHI

CASE NUMBER:  1801961

HOME AFFAIRS REFERENCE(S):          BCC2017/3917439

MEMBER:Donna Petrovich

DATE:18 November 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 18 November 2020 at 10:21am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – not enrolled in registered course – father’s illness and applicant’s return for two months – re-commencement of study with good results – mental health – intention to return to home country after completing course and gaining work experience – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(b)
Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 16 January 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 delegate cancelled the visa on the basis that the applicant remained unenrolled in a registered course of study for a period of nine months between 20 March 2017 and 15 December 2017. 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 25 November 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s migration agent Mr Raju KC. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

4. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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?

7. 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).

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

9. The applicant told the Tribunal that he had returned to his home country as his father was ill and stayed for a period of two months. On his returned from Nepal he was notified that he was un-enrolled.  The applicant initially told the Tribunal that he was un-enrolled for financial reasons, and said that this was the reason he provided to the Department in response to Notice of Intention to Consider Cancellation; later in the hearing, he said that this was not the reason, but that he had lost hope and given up, when his visa was cancelled.  The applicant was un-enrolled from the 20 March 2017 to 15 December 2017, a period of nine months. The Tribunal considers this to be a significant breach of his visa conditions. 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

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 Procedural Instruction ‘General visa cancellation powers’.

    The purpose of the visa holder’s travel and stay in Australia

11. The applicant told the Tribunal that he had come to Australia to study and had commenced a Bachelor of Professional Accounting at Holmes Institute.  He told the Tribunal that he intended to finish his study and then gain work experience in Australia if he was able and then return home to Nepal. The applicant has re-commenced study and is currently studying a Bachelor of Accounting; he has currently completed twelve subjects and is due to complete in 2021. The Tribunal has considered this and places some small weight in favour of the applicant in this regard as he has re-commenced study and is achieving good result with a 75% achievement rate.

    The extent of compliance with visa conditions

12. The applicant told the Tribunal that he works as a pizza chef to support himself for 40 hours per fortnight and that he acknowledges that the was un-enrolled for a period of time which led to his visa cancellation.  The applicant remained un-enrolled for a period of nine months between 20 March 2017 and 15 December 2017 which the Tribunal considers to be a significant breach of his visa conditions.

13. The applicant has remained in Australia without having complied with the conditions of his visa.  As such the applicant’s noncompliance is significant and in considering this the Tribunal gives no weight in favour of considering exercising discretion not to cancel.

14. The applicant provided a statutory declaration to the Tribunal as requested by the applicant’s migration agent after the hearing.  The applicant swore in the statutory declaration to return home to Nepal at the completion of his studies.

15. The statutory declaration said that, the applicant ‘came to Australia on 25 March 2015’, and states that ‘due to unforeseen circumstances [his] studies were halted, but has always made an attempt to complete [his] studies’.  The applicant is currently studying a Bachelor of Professional Accounting at Holmes Institute, with twelve units remaining at the time of hearing and is scheduled for completion in November 2021.

16. The applicant also provided a psychological report which was done post-hearing and stating that the applicant presented with symptoms consistent with adjustment disorder with mixed anxiety and depressed mood.

17. The report was written on 29 November 2019 by consulting Psychologist Mr Wei Lu B Psychology MBMSc MAPS.

18. The applicant presented post his hearing and was referred by his GP for an acute stress reaction.  The report states, ‘he had increased anxiety as the day of the hearing approached on 25 November 2019. Mr Shai presented with symptoms consistent with Adjustment Disorder with mixed anxiety and Depressed Mood’.

19. He reported ‘In my opinion Psychological management/intervention is highly recommended’.

20. The Tribunal takes into consideration these circumstances, the applicant’s psychological report and the information contained in the statutory declaration, which provides sworn evidence that the applicant will return to his home country upon the completion of his Bachelor of Accounting which is due to be completed in November 2021.

21. Whilst the applicant did not comply with visa conditions for a period of nine months, he had continued with his studies since that time and has undertaken to return to Nepal at the completion of his studies to his family and the opportunities that will be available to him upon his return.   The Tribunal places significant weight in the applicant’s favour of considering discretion not to cancel in this case.

    Degree of hardship that may be caused

22. The Tribunal heard that he intended to return to his home country to his family where his mother and father and two brothers live; his father and one of his brothers are civil engineers, his younger brother is still at school. The applicant told the Tribunal that he needed to complete a Bachelor Degree in Accounting and would like to further his study and also complete a Master’s Degree which would enable him to pursue a career in Banking or Accounts and perhaps be employed in a senior executive position upon his return to Nepal.

23. He told the Tribunal that his parents have invested significantly in him, and so they would be disappointed if he was to return home without his qualification.  He told the Tribunal at the time of the breach of his visa condition that he was very young and did not cope well with his father’s illness.

24. The applicant told the Tribunal that it was very important for him to complete his study as it would not be possible for him to find suitable employment without this qualification.

25. The Tribunal notes that in the event that the applicant’s visa is cancelled, under s.48 of the Act he may have limited options available to him if applying for further visas in Australia. In addition, he will be subject to Public Interest Criterion 4013 which means that he may not be granted a temporary visa for three years from the date of cancellation.

26. The Tribunal accepts that the applicant and his family would experience some hardship if the delegate’s decision were to be upheld and in consideration of the applicant’s age and life experience at the time of the breach, the Tribunal in considering this gives some weight in favour or the applicant in this regard.

    Circumstances in which the Ground for cancellation arose

27. The applicant told the Tribunal that he returned to Nepal as his father was very ill.  He remained in Nepal for two months and returned to Australia to find that his enrolment had been cancelled.  The applicant initially told the Tribunal that this was due to financial reasons, and when questioned about the circumstances, he did not provide convincing evidence, but did say that he felt unable to ask his father for assistance because he had been unwell.

28. The applicant did not seek assistance from any heath professional at the time and did not receive counselling and spoke to a friend who advised him to appoint a migration agent.  The applicant did not provide evidence to the Tribunal of seeking any assistance from his education provided. He did tell the Tribunal at the hearing that he had tried to re-enrol but was unable to do so, and that the College would not accept his application. The applicant did not appoint a migration agent until 25 January 2018.

29. The Tribunal has considered the evidence provided by the applicant and in doing so does not consider that the circumstances were beyond the applicant’s control.  In this case the applicant did not seek assistance which may have prevented the cancellation of his enrolment, nor did he report his circumstance to the education provider and seek a deferment during this period.  Therefore, the Tribunal places little weight in favour of the applicant in this regard.

    Past and present behaviour of the visa holder toward the Department

30. The applicant has been cooperative and courteous in all his dealings with the Tribunal.  No adverse information has been provided to the Tribunal and a such some weight is given to the applicant in consideration of this factor.

    Persons in Australia whose visa would be cancelled under s.140

31. The applicant did not make any claim to the Tribunal relating to any person in Australia whose visa would or may be cancelled under s.140 of the Migration Act 1958 (‘the Act’). According to Department records there are no persons in Australia whose visa may be cancelled under s.140 of the Act.

32. Accordingly, the Tribunal places no weight on this consideration in the applicant’s favour.

    Any breach of international obligations Australia may have as a result of the applicant’s visa being cancelled

33. The circumstances of this case are such that they would not engage Australia’s international obligations and therefore the Tribunal does not give any weight in favour of the applicant in making this decision.

    Other relevant factors

34. Having considered the evidence presented by the applicant both at the hearing and before the delegate, the Tribunal is satisfied that there are no other factors in relation to this case.

35. Therefore, considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.   

    DECISION

36. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Donna Petrovich
    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.