Shrestha (Migration)

[2022] AATA 2740

Shrestha (Migration) [2022] AATA 2740 (5 August 2022)

Corrigendum

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dipesh Shrestha

CASE NUMBER:  1914484

HOME AFFAIRS REFERENCE(S):          BCC2018/958404

MEMBER:Wan Shum

DATE OF DECISION:  5 August 2022

DATE CORRIGENDUM

SIGNED:22 August 2022

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

All references in the Decision Record to cl 457.212(3) should be replaced with cl 457.221.

Wan Shum
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dipesh Shrestha

CASE NUMBER:  1914484

HOME AFFAIRS REFERENCE(S):          BCC2018/958404

MEMBER:Wan Shum

DATE:5 August 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 457 visa:

·cl 457.212(3) of Schedule 2 to the Regulations.

Statement made on 05 August 2022 at 3:49pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – substantial compliance with conditions of last substantive visa – failure to be enrolled in registered course – study difficulty and decision to change courses – new course not available until the next term – completed short English language course – no completed higher study – visa condition of enrolment, not successful completion – attempts to maintain enrolment – relatively short period of non-enrolment – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 457.221, Schedule 8, condition 8202(2)(a)

CASES
Baidakova v MIMIA [1998] FCA 1436
Jayasekara v MIMIA (2006) 156 FCR 199
Kim v Witton (1995) 59 FCR 258
MIMA v Modi (2001) 116 FCR 496
Shrestha v MIMA [2001] FCA 1578

statement of decision and reasons

application for review

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 17 May 2019 to refuse to grant the visa applicant a Temporary Business Entry (Class UC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 28 February 2018. At the time the application was lodged, Class UC contained Subclass 457. The criteria for a Subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

3. The delegate refused to grant the visa on the basis that cl 457.221 was not met because the delegate found that the applicant had not complied substantially with condition 8202.

4. The applicant appeared before the Tribunal by videoconference on 4 August 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Andre Felicio, his employer.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   consideration of claims and evidence

6. The issue in this case is whether the applicant, being in Australia, have complied substantially with the conditions that applied to the last of any substantive visas held and to any subsequent bridging visa.

   Has the applicant complied substantially with the conditions of the last relevant visa(s)?

7. If the applicant is in Australia, cl 457.221 requires that he or she must have complied substantially with the conditions that applied to the last of any substantive visas held and to any subsequent bridging visa. Whether the applicant has complied substantially with a visa condition is a question of fact, to be determined having regard to the particular circumstances of the case: Kim v Witton (1995) 59 FCR 258 (at 271), followed in Baidakova v MIMIA [1998] FCA 1436. The circumstances considered by Sackville J to be relevant in Kim v Witton included:

   ·the nature of the breach of condition;

   ·the significance of the breach, especially by reference to the purposes for which the visa or entry permit was granted;

   ·whether or not the applicant deliberately flouted the condition; and

   ·if the applicant failed to appreciate that he or she was in breach of the condition, what, if anything, contributed to that failure and, in particular, whether the Department misled the applicant.

8. However, there is no rigid test, and those considerations should not be regarded as exhaustive, or elevated to the status of relevant considerations in every case: see Shrestha v MIMA [2001] FCA 1578 and MIMA v Modi (2001) 116 FCR 496. In addition, there are visa conditions to which the concept of substantial compliance has no logical application. In these cases, either the condition is satisfied or it is not: Jayasekara v MIMIA (2006) 156 FCR 199.

9. In the present case, the applicant’s last substantive visa was a Subclass 573 visa that was subject to conditions 8202 (education requirements); 8105 (work limitation); 8501(arrangements for health insurance); 8516 (continue to satisfy criteria); 8517 (school age dependents); 8533 (notify change of address). That visa ceased on 15 March 2018 and the applicant subsequently held, and continues to hold, a Bridging visa A, subject to condition 8105 (work limitation).

10. The delegate considered that the information reflected that the applicant had not been enrolled for study from 16 January 2016 to 15 March 2018 and, consequently, that he had breached subclause 8202(2)(a) due to having failed to be enrolled in a registered course.

11. On review, the applicant has provided copies of several Confirmation of Enrolments in degree level courses which reflect that he was enrolled in a Bachelor of Business (Information Systems Management) at Victoria University from 17 August 2015 (with a course start date from 29 March 2016); then in a Bachelor of Information Technology course at Southern Cross University from 26 October 2016 (with a course start date from 31 October 2016); followed by a Bachelor of Business (Accounting) course at Polytechnic Institute Australia from 23 June 2017 (with a course start date from 26 June 2017).

12. The information before the Tribunal indicates, and the applicant confirmed, that he had not completed any of this study. According to PRISMS records, the applicant’s last day at Victoria University was on 22 July 2016 being the date entered into PRISMS by his education provider when his CoE was cancelled. The applicant explained at the hearing that he found the course hard and could not understand it. He said he wanted to change courses to Bachelor of Information Technology as he was good at programming and that the course was offered at Southern Cross University (SCU), but as the study term had already commenced, he had to wait until the next term to enrol. This meant that there was a short gap in between his two Bachelor degree courses. The applicant claims that on the advice of his education agent, he enrolled in a short English language course at Australian Ideal College commencing 5 September 2016 to 7 October 2016 to ensure that he would not breach any of his visa conditions. The CoE for the English language course reflects that it was created on 2 September 2016 and PRISMS records indicate that it ceased on completion of the course, that is on 7 October 2016.   

13. While the Tribunal is prepared to accept on his oral evidence that he enrolled in this course on the advice of an agent, it notes that an English language course is not a ‘higher education sector’ course. The applicant did not claim, and there does not appear to be any indication that, he was required to undertake further English language study prior to commencing the Bachelor degree course at SCU. But, in any case, the enrolment was only for a short period of around 4 weeks.

14. The evidence before the Tribunal is that from 26 October 2016, the applicant was enrolled at SCU with a course commencement date of 31 October 2016. The information from PRISMS is that his last day of study in that course was 23 July 2017, which means his enrolment also ceased on that date. The applicant explained that while he was good with the programming component, he did not have any interest in economics and could not focus on these studies. The applicant has provided evidence of enrolment in a bachelor’s degree in accounting at Polytechnic, and the creation date of the CoE was 23 June 2017 which reflects that the applicant had already enrolled in this course before his last day of study at SCU. When asked why he would enrol in accounting if he had no interest in economics, he said that his friends had told him it was easier than studying IT. It appears that he also did not complete that course either, claiming that he studied at Polytechnic for two terms. The Tribunal notes that his enrolment there was not cancelled on PRISMS until 29 March 2018, which is after the date his student visa ceased on 15 March 2018.

15. After the student visa ceased, the applicant has held a Bridging Visa A which had condition 8105 attached. This condition applies a work limitation prior to commencement of the course or when the holder’s course of study or training is in session. Neither of these circumstances applied at the time the Bridging Visa A came into effect on 15 March 2018 when his student visa ceased, as the information before the Tribunal reflects that the applicant ceased studying around that time.

16. Having regard to all the evidence before the Tribunal, the periods during which the applicant was not enrolled in any course was from 23 July 2016 to 2 September 2016 (in between ceasing at Victoria University and enrolling at Australian Ideal Institute) and then for a period from 8 October 2016 to 26 October 2016 (in between finishing the English study at Australian Ideal Institute and enrolling at SCU). In total, this is less than 2 months while holding a student visa which had been granted for a nearly 4-year period. Given that an English language course is not usually a higher education sector course, although can be packaged in this way, the Tribunal has also considered the length of non-enrolment by excluding the dates of enrolment at Australian Ideal Institute. The total period of non-enrolment would then be from 23 July to 26 October 2016 (excluding the English language course because it is not a higher education sector course), being the gap between when he had ceased his enrolment at Victoria University and had not yet enrolled at SCU. This is approximately 3 months. This is a much shorter period of non-enrolment than set out in the decision to refuse to grant the visa.

17. The applicant confirmed that he did not complete any of his Bachelor degree study, claiming to have only studied at most two terms in each course. While student visas are granted to persons wishing to pursue study in Australia and in this case the applicant did not achieve a degree qualification, condition 8202(3)(a) only requires enrolment and not successful completion of studies. It is condition 8202(3)(b) which refers to academic performance, and even then, requires a positive action from the education provider in certifying the student for a perceived breach. There is no record of that having occurred in this case. Taking into account the applicant’s reasons for the gaps in enrolment, which includes a delay due to having to wait for the next term start date at SCU, the Tribunal considers that on the whole he made an attempt to maintain continuous enrolment for the duration of his student visa. In the Tribunal’s view, while he was not enrolled for three months, having regard to the visa grant period of nearly four years, it finds that the applicant had complied substantially with condition 8202(3)(a).

18. There is no evidence before the Tribunal that the applicant failed to comply with any other conditions which applied to his visa, nor condition 8105 which was the only condition that applied to his subsequent bridging visa.

19. For these reasons, the Tribunal finds that the applicant has complied substantially with the applicable visa conditions. As such, the applicant satisfies cl 457.212(3).

20. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 457 visa.

    decision

21. The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 457 visa:

    ·cl 457.212(3) of Schedule 2 to the Regulations.

    Wan Shum
    Member