Sherpa (Migration)

[2024] AATA 3706

Sherpa (Migration) [2024] AATA 3706 (20 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Nima Sherpa

REPRESENTATIVE:  Mr Deepak KC (MARN: 1700414)

CASE NUMBER:  2304581

HOME AFFAIRS REFERENCE(S):          BCC2022/4044524

MEMBER:Wendy Banfield

DATE:20 September 2024

PLACE OF DECISION:  Canberra

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 20 September 2024 at 4:19pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered course – payment of college fees – gap in studies – renewed academic progress – studies relevant to future employment – decision under review set aside    

LEGISLATION

Education Services for Overseas Students Act 2000, s 19
Migration Act 1958, ss 48, 116, 140
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 28 March 2023 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 the visa holder had not been enrolled in a registered course for a period of 13 months and therefore did not comply with the requirements of subclause (2)(a) of condition 8202. 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 5 September 2024 to give evidence and present arguments.

4. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

5. The Tribunal considered the following evidence provided to the Department and the Tribunal:

   ·     Department of Home Affairs (the Department) notification and decision record dated 28 March 2023.

   ·     Letter from National Academy of Professional Studies dated 27 August 2024 confirming enrolment in a Bachelor of Business.

   ·     Academic Transcript for a Bachelor of Business from National Academy of Professional Studies dated 2023/2024.

   ·     World Remit receipts for payments from the applicant to Kathmandu in 2021.

   ·     Screenshots of payment receipts from 2021 labelled college fees.

   ·     Confirmation of Enrolment (COE) for General English dated 01 February 2023.

   ·     COE for a Bachelor of Business (Accounting), dated 31 January 2023.

   ·     Form 956 dated 02 February 2023.

   ·     Applicant’s statutory declaration dated 01 February 2023.

   ·     Australian Technology and Innovation College (ATIC) Diploma of Business certificate dated 03 July 2020.

   ·     ATIC Diploma of Business record of results dated 07 September 2020.

   ·     ATIC Certificate IV in Business dated 17 May 2019.

   ·     ATIC Certificate IV in Business record of results dated 03 September 2020.

   ·     Crown Institute of Higher Education COE cancellation notice dated 01 February 2023

   The hearing

6. The applicant advised she came to Australia in May 2018 to study a Certificate IV and Diploma in Accounting. In Nepal she had worked in hotel management, hospitality, and tourism. She completed the certificate and diploma courses and enrolled in a Bachelor of Accounting. She began studying the first semester of the course but during COVID-19, decided to transfer to a different college. She declared she had studied the course for one year.

7. The applicant submitted she paid for her studies through an agent and claimed the agent failed to pass on the fees to the college. According to the applicant she was sent correspondence by the college about fees not being paid but they went to her spam folder. The applicant said her COE was cancelled but she was not aware of it initially because classes were being held online.

8. In her evidence to the Tribunal the applicant said that in 2021 she was in a relationship with a boyfriend who was still in Nepal, and she was asked to send money to him. The applicant said she felt pressured to provide support because the pandemic was causing financial stress. The applicant was reminded that it is not permissible to hold a student visa while in Australia but not study. The applicant agreed and said she understood. She said she tried to contact the agent to whom she had paid fees but there was no response. The applicant claimed she had no one to provide advice or instruction and she had not known what to do.

9. The Tribunal put to the applicant that she should have contacted the Department about her situation during the period she was not enrolled to study. She reiterated she had not known what to do and agreed she had only acted to re-enrol on receiving the Department’s Notice of Intention to Consider Cancellation (NOICC). The applicant said since re-enrolling in a Bachelor of Accounting she has been granted credit for some subjects and has completed eight other units. The course is due to be completed in July 2025. The applicant advised that after completing a bachelor’s degree she plans to apply for a Subclass 485 visa to gain work experience.

10. The applicant was asked if she agreed the Department had grounds to cancel her visa due to her failure to maintain enrolment. The applicant agreed that she did have a gap in her studies and there had been grounds to cancel.

11. The applicant was asked if she had a compelling need to stay in Australia. The applicant replied she finished certificate and diploma courses, and she really wants to complete the degree she is now enrolled in. The applicant stated she had personal issues at the relevant time but is now on track to achieve her goals. She said her parents have supported her in Australia and continue to do so, she works part-time in a café but does not do so during assignments. Regarding any hardship that would result from cancellation, the applicant said that her years of work will be wasted if her visa is cancelled. She said her family and those supporting her will be let down if she does not complete her degree.

12. The applicant stated there would be no consequential cancellations under s 140 of the Act if her visa is cancelled, and she is aware of the legal consequences of cancellation. In relation to the legal consequences, the applicant reiterated she wants to obtain relevant work experience in Australia which she would be unable to do if her visa is cancelled and she is required to depart. The applicant did not make any submissions about any international obligations that would be breached as a result of the cancellation.  

13. 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

14. 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?

15. 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).

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

17. According to the Provider Registration and International Students Management System (PRISMS), which provides the Confirmation of Enrolment and study records of international students the applicant was not enrolled in a registered course from 10 December 2021 to 16 January 2023 when the Department wrote to her advising of an intention to consider cancelling her visa. Therefore, it appeared the applicant had not complied with the requirements of subclause (2)(a) of condition 8202. During the hearing the applicant agreed she had not been enrolled for the relevant period and that the Department did have grounds to cancel her visa.

18. 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

19. 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

20. The applicant came to Australia as the holder of a student visa. She completed a Certificate IV in Business in 2019 and a Diploma of Business in 2020. She progressed to a Bachelor of Accounting that was later cancelled. 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 and achieve qualifications in business and accounting.

21. The applicant provided evidence about her background in Nepal and made submissions about her reasons for choosing to study accounting. She has completed a significant component of a bachelor’s degree after progressing from certificate and diploma level. The Tribunal accepts the applicant will benefit from studying at tertiary level in Australia and has given some weight to a compelling need to remain in Australia.

    ·     the extent of compliance with visa conditions

22. There is no evidence before the Tribunal that the applicant has not complied with any other visa conditions and the Tribunal has given some weight in her favour on this consideration.

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

23. The Tribunal considered any hardship that may arise because of the applicant’s visa being cancelled. The applicant is currently enrolled in a Bachelor of Business (Accounting) that began on 20 March 2023 and ends on 27 July 2025. The applicant provided evidence and made submissions that she has obtained credit for some units of the degree and at the time of the hearing, had completed eight units. She was enrolled in four units and has another five to complete. If the visa is cancelled the applicant will have to cease studying the course despite having made academic progress. Based on the evidence provided, the Tribunal accepts the applicant will suffer a degree of hardship if her visa is cancelled.

    ·     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

24. The applicant’s visa was cancelled because she held a student visa but was not enrolled for approximately 13 months. Regarding the circumstances that led to her visa being cancelled, the applicant claimed she paid for her studies through an agent and the agent did not pass on the fees to the college. The applicant submitted screenshots of sums debited from a Commonwealth bank account to an agency in Auburn in New South Wales and labelled “college fees”. The screenshots are for payments made in 2021. The applicant then claimed she was sent correspondence by the college about fees not being paid but it went to her spam folder. The Tribunal is concerned that non-payment of fees in 2021 does not account for the applicant’s gap in enrolment for an extended period of time during 2022, through to January 2023.

25. The applicant claimed that a contributing factor to her failure to maintain enrolment in 2021 was that her boyfriend in Nepal was pressuring her to send money because the pandemic was causing financial stress. She said she did send money to Nepal as evidenced by money transfers to Kathmandu in 2021 but eventually ended the relationship to be able to concentrate on her studies. The applicant did not claim her visa was cancelled due to the relationship breakdown for reasons of family violence, or any other reason. The Tribunal is not satisfied the applicant has provided a satisfactory explanation for her failure to maintain enrolment or continue her studies for more than 12 months. As was explained to her during the hearing, it is not permissible for a visa holder to remain in Australia and not study.

26. The Tribunal accepts the applicant provided a response to the Department, and an explanation to the Tribunal about the circumstances she says led to her visa being cancelled. However, the Tribunal is unable to place significant weight in her favour based on her explanation alone. 

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

27. The applicant responded to the Department’s Notice of Intention to Consider Cancellation that was sent to her on 16 January 2023 and provided reasons for her failure to maintain enrolment at the required level. The applicant subsequently re-enrolled to study at the same level as she had attempted previously.

    ·     whether there would be consequential cancellations under s.140

28. 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

29. 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 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 because of cancellation. The Tribunal has assessed the applicant’s claims and evidence and considers the mandatory legal consequences of cancellation would impact the applicant’s current course of study.

    ·     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

30. There is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in Australia breaching any international obligations.

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

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

    ·     any other relevant matters

32. The Tribunal placed positive weight on the applicant’s current enrolment in a higher education course of study and her academic progress since re-enrolling to study. The applicant has demonstrated she is a capable student who is able to complete courses. In addition, she has progressed in a logical fashion from certificate, to diploma and then to an undergraduate degree in the subject areas of business and accounting. The Tribunal is of the view the applicant understands the significance of her past failure to comply with visa conditions.

    Conclusion

33. The Tribunal has considered the applicant’s circumstances individually and cumulatively. Although the Tribunal finds there are some aspects of the applicant’s case that weigh against her, on balance, the Tribunal considers she should be given the opportunity to complete her bachelor’s degree. The Tribunal is satisfied the applicant’s subsequent behaviour is sufficient reason for the visa not to be cancelled.

    DECISION

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