Shahi (Migration)

[2020] AATA 1074

Shahi (Migration) [2020] AATA 1074 (13 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Arjun Shahi

CASE NUMBER:  1931266

HOME AFFAIRS REFERENCE(S):          BCC2019/3261823

MEMBER:Michael Biviano

DATE:13 January 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 500 (Student) visa.

Statement made on 13 January 2020 at 9:16am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – enrolment in a registered course ceased – applicant changed to diploma level course and English studies – applicant built up fundamentals to later undertake degree course – required to resubmit assignments – family illness – decision under review remitted          

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8; Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 1 November 2019 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 (the Act).

2. The delegate cancelled the visa on the basis that the applicant had not been enrolled in a registered course of study from 13 July 2019 and he was not compliant with condition 8202 of his visa. The delegate went on to consider that the factors in favour of cancellation outweighed those against cancellation. 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 20 December 2019 to give evidence and present arguments. 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.

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:

   ·must be enrolled in a full-time registered course: 8202(2)(a);

   ·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: 8202(2)(b);

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c); and

   ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c).

8. In the present case, the applicant’s visa was cancelled on the basis that the applicant was not enrolled in a registered course of study from 13 July 2019 to 1 November 2019.

9. The Decision Record of the delegate of the Department of Home Affairs dated 1 November 2019, which was provided to the Tribunal by the applicant, confirms that the Department cancelled the Student (Temporary) (Class TU) (Subclass 500) visa which was granted on 15 November 2017 and the reasons for the cancellation of the visa (Decision Record).

10. The applicant arrived in Australia on 23 November 2017 from Nepal pursuant to a Student Class TU (Subclass 500) visa to study a Bachelor of Information Technology at Federation University.

11. Prior to coming to Australia, the applicant had obtained an overall result of 6.0 on his IELTS score. The applicant commenced studying the Bachelor of Information Technology in November 2017. He studied five subjects and the examinations were held in February 2018. The applicant did not pass any subjects.

12. The applicant gave evidence that he found the course very difficult and he could not understand the underlying concepts and the language. He obtained advice from an education consultant who recommended that he change course to better enable him to obtain a qualification. The consultant recommended that the applicant enrol in a Diploma of Information Technology which is at level 5 of the Australian Qualifications Framework (AQF), and a lower level than the Bachelor of Information of Technology which is at level 7 of the AQF. The applicant gave evidence that he was aware by that enrolling in the Diploma course he was in breach of his visa. However he explained that due to his poor results in undertaking the Bachelor of Information of Technology, he needed to undertake studies at a lower level to build up his understanding so that he could undertake a Bachelor’s degree. He claimed that he was not able to enrol in a Bachelor’s degree until after completing the Diploma, and then he would undertake the Bachelor’s degree which would be at level 7 of the AQF.

13. The applicant intended to comply with the visa and obtain the Bachelor’s degree before he returns home to Nepal.

14. The applicant cancelled his enrolment in the Bachelor of Information Technology and enrolled in a General English course which he completed, and on 16 July 2018 he commenced studying a Diploma of Information Technology at Strathfield College. The COE for the course confirmed that the completion date was 12 July 2019. The applicant completed the course, but the College refused to award him the Diploma. The applicant made enquiries and went to see the College Director of Studies in July 2019 who informed him that he was required to resubmit 11 assignments (of the 20 assignments he had completed) before the College would consider whether to award the Diploma.

15. Essentially the College has determined that his academic performance was unsatisfactory but he was given an opportunity to resubmit work. It is unclear why the applicant would not have been made aware that his level of work was unsatisfactory during the course of the year and why he did not resubmit assignments during the year.

16. The applicant claims that he requested to be re-enrolled at the College in the same course while he completed the assignments. No correspondence was tendered in support of such a request. The applicant claims that request was refused because he had already completed the course.

17. The applicant gave evidence that he was informed by his family on 15 July 2019 that his grandmother was ill and had been hospitalised. He claimed that by reason of his grandmother’s condition, he could not concentrate on getting enrolled and completing the assignments. The applicant claims his grandmother had diabetes and low blood pressure and some infection issues. The applicant had submitted medical examination results for his grandmother which were not relevant as they were from 2018 and not relevant to this complaint.

18. The applicant’s grandmother returned home in mid-August 2019 and she is in a good medical condition and not in a life-threatening position.

19. The Tribunal accepts that whilst his grandmother was in hospital he would have been concerned for her condition, however it does not accept that his condition was such that he could not study, complete the assignments or enrol in a course. The applicant has not submitted any medical evidence or psychological evidence as to his condition at the time that it was so severe that he could not study or enrol in a registered course of study.

20. Further, even if he was stressed about his grandmother’s condition, such a condition would have abated on his grandmother’s condition improving with treatment and returning home after a period of four weeks.

21. The Tribunal does not find that the applicant did not enrol in a registered course after 12 July 2019 by reason of his stressed mental state caused by his grandmother’s health.

22. Rather, the Tribunal notes that the applicant by his evidence stated that he had met with the Director of Studies at Strathfield College on two occasions, the first in mid-July 2019 and then on 14 October 2019, to discuss completing the Diploma at Strathfield College by re‑enrolling at the College and resubmitting assignments. The College did not allow the applicant to re‑enrol in the course.

23. The Decision Record confirms that on 10 October 2019, the Department gave the applicant Notice of Intention to consider cancellation of the visa under s.116 of the Migration Act 1958 (NOICC).

24. The applicant submitted a statement in response to the NOICC on 16 October 2019, which stated:

25. The response submitted by the applicant did not take issue with the fact that he was not enrolled in a registered course of study from 13 July 2019.

26. Further, the applicant by his migration agent filed submissions with the Tribunal on 12 December 2019, prior to the hearing, conceding that her client was in breach of the visa for not being enrolled for a period of three months (Submissions).

27. The Decision Record confirms that the applicant was not enrolled from 13 July 2019 to 1 November 2019, which represents a period of just over three and a half months. The applicant’s evidence concedes that he was not enrolled for that period of time.

28. On the evidence before the Tribunal, it finds the applicant was not enrolled in a registered course for the period of time being three and a half months from 13 July 2019 to 1 November 2019. Accordingly the applicant has not complied with condition 8202(2). As this was a condition which was attached to his visa, the applicant has therefore breached a condition of his visa and the visa is liable to cancellation under s.116(1)(b).

    Consideration of the discretion to cancel the visa

29. 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’.

    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

30. The applicant gave evidence that he came to Australia pursuant to a student visa and since his arrival in Australia he has been on a student visa and, as discussed above, he has studied at numerous education providers for the purpose of obtaining tertiary qualifications in Information Technology.

31. On the evidence before the Tribunal, the applicant has been in Australia since November 2017 and undertaken continuous studies with the first semester of the Bachelor of Information Technology at Federation University, a short course in General English and the Diploma of Information of Technology at Strathfield College.

32. The gap in study where he was not enrolled was a period of three and a half months which is a very short gap, especially having regard to the issues he was having with his grandmother and sorting out why he had not been awarded the Diploma and what steps he could take to re-enrol or complete the Diploma. The short gap of not being enrolled in those circumstances is not inconsistent with an intention to study.

33. Further, the applicant presented to the Tribunal a letter of offer from Western Sydney College dated 11 December 2019, confirming that he had been offered a place in the Diploma of Information Technology Networking course. The applicant gave evidence that he intends undertaking this course, which should take approximately one year to complete and at the conclusion of the course he will undertake the Bachelor of Information of Technology from Southern Cross University, which should take two years. The applicant gave evidence that he had spoken to his education consultant and was confident he would be able to undertake those courses.

34. Having regard to the applicant’s evidence, the Tribunal accepts that the applicant had travelled to Australia with an intention to study and studied for most of his duration in Australia, save for a short gap of three and a half months. Further, he intends to remain in Australia to study and complete a Diploma and Bachelor’s degree in the Information Technology field. In light of his evidence and given his conduct in Australia as set out above, the Tribunal gives this factor substantial weight towards the visa not being cancelled.

    The extent of compliance with visa conditions

35. The applicant was not enrolled for a period of three and a half months which is a very short period of time. Therefore, the applicant has not complied with condition 8202(2) only for a very short period of time. The non-compliance with condition 8202(2) for such a short duration of time, in light of his circumstances with his grandmother, and the problems with completing the course at Strathfield College, does not weigh towards cancelling the visa.

36. The applicant in evidence gave a number of reasons why he was not enrolled during that time. The Tribunal accepts as discussed above that the applicant had issues with Strathfield College and he was concerned about his grandmother’s condition.

37. The applicant was given the opportunity after the hearing to submit documents to the Tribunal in support of his application and on 6 January 2020, prior to the time set for filing further material, the applicant filed supporting documentation with the Tribunal, including an undated email with Strathfield College drawing the applicant’s attention to the fact that he had not completed all units in his course. This email supports the applicant’s evidence of his issues with Strathfield College.

38. However the Tribunal does not accept that the applicant’s state was such that he was unable to concentrate on studies, complete the assignments or enrol in another course.

39. The Tribunal finds that the applicant ought have resolved his issues with Strathfield College and ought have enrolled in another course within a reasonable period of time, which ought have been no more than two months after completing the Diploma course.

40. The Decision Record confirmed that the applicant had also been non-compliant with the visa condition 8202 because he was enrolled in a Diploma at level 5 of the AQF and he had not maintained an enrolment in a course at level 7 of the AQF, which is the level of the course he was enrolled in when he obtained the visa.

41. The applicant gave evidence that he intends enrolling in a Bachelor’s degree and intends to use the Diploma course as a stepping stone in obtaining the Bachelor’s degree, having regard to the difficulties he had encountered with his studies in the Bachelor’s degree on arriving in Australia. The applicant’s evidence was supported by the Submissions.

42. The Tribunal accepts the applicant’s explanation on this ground.

43. The Tribunal finds that the short period of non-enrolment and the circumstances of the non‑enrolment were such that the Tribunal gives this factor marginal weight towards the visa not being cancelled.

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

44. The Tribunal asked the applicant if he or other members of his family would suffer hardship if the visa was cancelled.

45. The applicant gave evidence that the visa cancellation would cause him a substantial degree of hardship as he would struggle to get a good job back home. He gave evidence that a person qualified with a Diploma in the Information Technology field would earn the equivalent of AU$9,000 per annum, whereas a person with a Bachelor qualification would earn AU$20,000 plus per annum. He gave that evidence based on a salary for an Information Technology Officer.

46. The applicant claimed without obtaining qualifications in Australia, he has lost more than two years. He gave evidence that if his visa was cancelled he would return to Nepal. He could endeavour to get enrolled in an Information Technology course back home, but that would be difficult to do considering the years he has lost in Australia, and he would need to explain that lost time in any enrolment application to a College in Nepal.

47. Further, the applicant gave evidence that he has been financially supported to study by his mother since being in Australia but he expects that support would be withdrawn if he returns home without a qualification. He claims that his mother is prepared to sell a property in Nepal to support his and his brother’s education. However he claims his mother would not fund his education back home. There is no evidence to support such a claim, and such a claim does not appear logical.

48. The applicant conceded in evidence that he had not told his family about his struggles with his studies and visa. The applicant’s mother had suffered financial loss for the applicant’s tuition fees and living expenses which have been incurred. Unless the applicant can obtain a credit in future studies for subjects he has completed or is able to submit his assignments in due course to complete the Diploma from Strathfield College, then those fees will be lost regardless if the applicant’s visa is cancelled or not.

49. The applicant gave evidence that if the cancellation was set aside he would undertake a Diploma in Information Technology and a Bachelor’s degree in Information Technology, which would set up his career back home in Nepal. The applicant gave evidence that he intended returning home to live with his family and work in a well-paid job and support his mother financially.

50. The Tribunal finds that these matters may be the consequences of the visa cancellation, but they are not matters on their own which would constitute a degree of hardship sufficient to weigh against cancelling the visa.

51. The Tribunal considers that the above matters give marginal weight towards the visa not being cancelled.

    Circumstances in which ground of cancellation arose

52. 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.

53. The applicant gave evidence as to the circumstances that led to the cancellation of the visa as set out above.

54. Ultimately the responsibility regarding enrolment rests with the student, but considering the short duration of the breach and the applicant’s explanation for not being enrolled, coupled with the applicant seeking to enrol in Diploma of Information Technology (Networking) at Western Sydney College, the Tribunal is persuaded by his reasons for non-enrolment.

55. The Tribunal has considered the applicant’s explanations as discussed above for why he was not enrolled for this short period and therefore in breach of condition 8202(2) for a short period of time. The Tribunal gives this matter some weight towards the visa not being cancelled.

    Past and present behaviour of the visa holder towards the Department

56. According to the Decision Record, the applicant had responded to the NOICC. Further, there was no other evidence that the applicant had been uncooperative towards the Department. The Decision Record also confirmed that there is no evidence that he had been uncooperative with the Department or the Department’s staff. The Tribunal gives this factor little weight towards the visa not being cancelled.

    Whether there would be consequential cancellations under s.140

57. As the cancellation of the visa does not affect the visa of any other person, this matter is not relevant in this application and the Tribunal gives this no weight towards the visa not being cancelled.

    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

1. If the Tribunal decides to affirm the decision to cancel the visa under these grounds, then the applicant will become an unlawful non-citizen and liable to detention under s.189 and removal under s.198 of the Act if he does not voluntarily depart Australia. Further, pursuant to s.48 of the Act, the applicant will have limited options to apply for further visas in Australia, so he would need to depart Australia and apply from overseas for most types of further visa applications.

2. Further, if the Tribunal decides to affirm the decision to cancel the TU500 Student visa under these grounds, this will come within the identified risk factors to make the applicant meet public interest criterion 4013, so if the applicant decides to apply for a new visa from overseas if he has to depart Australia, then that application may not be approved within the next three years.

3. However these consequences are the intended consequences of the legislation when a visa is cancelled under these grounds.

4. The applicant gave evidence that if the visa remained cancelled he would return to Nepal, and therefore there is no indication that he would become unlawful or be subject to detention.

5. Accordingly the Tribunal gives this factor marginal weight towards the visa not being cancelled.

   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

6. This matter does not appear relevant in this application as the applicant gave evidence that if the visa remained cancelled he would return to Nepal, and he did not give any reasons as to why he could not return to Nepal; and he has not made any claims that relate to this consideration. Accordingly the Tribunal gives this factor no weight towards the visa not being cancelled.

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

7. This matter is not relevant in this application as the cancelled visa is a temporary visa and the Tribunal gives this factor no weight towards the visa not being cancelled.

   Any other relevant matters

8. The Tribunal considers that it is a relevant matter as to whether the applicant is able to obtain enrolment in a registered course at an appropriate level to his visa. If the applicant is unable to obtain enrolment in a course that is at an appropriate level to his visa, it will weigh towards his visa being cancelled as there would be little utility to set aside the cancellation of the visa if the applicant would remain in breach of his visa condition.

9. The applicant gave evidence that he would be able to gain enrolment in a Bachelor’s degree at Southern Cross University, and he was given the opportunity by 6 January 2020 to submit further evidence to the Tribunal in support of being able to obtain a future enrolment in a Bachelor’s degree.

10. The applicant did not submit any letters of offer or letter of enrolment to the Tribunal which supports his ability to obtain an enrolment at level 7 of the AQF or higher.

11. The Tribunal accepts that the applicant may have had difficulties in obtaining such supporting documentation in light of his visa cancellation and the nature of the breach relied upon for the visa cancellation.

12. Based on the applicant’s evidence, the Tribunal accepts that the applicant will seek to obtain a future enrolment in a Bachelor’s course at level 7 of the AQF or higher, as soon as possible, to ensure compliance with his visa conditions.

13. Accordingly the Tribunal gives this factor marginal weight towards the visa not being cancelled.

    Conclusion

14. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

15. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

    Michael Biviano
    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.