Shrestha (Migration)

[2020] AATA 4323

Shrestha (Migration) [2020] AATA 4323 (26 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sandeep Shrestha

CASE NUMBER:  1926200

HOME AFFAIRS REFERENCE(S):          BCC2019/2655276

MEMBER:David Thompson

DATE:26 August 2020

PLACE OF DECISION:  Perth

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 26 August 2020 at 12:38pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – substantial length of breach – circumstances giving rise to non-compliance – grandmother’s health – attempts to re-enrol – floods and landslides in Nepal – beyond the applicant’s control – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116

Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 11 September 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 breached condition 8202 on his visa, sub-clause 2(a) of which required him to be enrolled in a full-time registered course. 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 August 2020 to give evidence and present arguments. 

4. The applicant was represented in relation to the review by his registered migration agent, although his registered migration agent did not appear at 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 applicant is a citizen of Nepal. According to the delegate’s decision record dated 11 September 2019 (a copy of which the applicant provided to the Tribunal) he was granted a sub-class TU-500 student visa on 19 January 2018 in order to study a package of courses consisting of a Diploma of Commerce at Curtin College and a Bachelor of Commerce at Curtin University. The Department sent him a Notice of Intention to Consider Cancellation (NOICC) on 25 July 2019. After the applicant had responded to the NOICC, his visa was cancelled on 11 September 2019 on the basis that, as stated above, he had ceased to be enrolled in a full-time registered course, as required by condition 8202 on his visa.

7. The issue in the present case is, therefore, 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.

8. The applicant gave oral evidence relevant to both these issues at hearing. He also provided the Tribunal with the following documentary evidence:

   a.the Department’s notification of cancellation and the Delegate’s decision record, both dated 11 September 2019;

   b.written submissions prepared by the applicant’s registered migration agent dated 7 August 2019 and directed to the Department in response to the Department’s NOICC;

   c.his statutory declaration made on 7 August 2019;

   d.Confirmation of Enrolment AD3B5469, in respect of the applicant’s enrolment in a Bachelor of Business course at Stanley College, scheduled to run from 26 August 2019 to 17 June 2022; and

   e.a copy of his Nepalese passport.

9. The Tribunal has also reviewed and considered the Departmental file in relation to the cancellation of the applicant’s visa. It contains each of the documents mentioned above, and in addition (as relevant):

   a.a bundle of medical records put forward as relating to the applicant’s grandmother, Ms Chini Maya Shrestha; and

   b.a copy of an article from the Kathmandu Post of 22 August 2018, regarding landslides and floods in Nepal that occurred around that date.

10. The Delegate’s decision record stated that she had relied on the applicant’s record as kept in the Provider Registration and International Student Management System (PRISMS). She also apparently relied upon records kept by the Department itself of the applicants’ movements into and out of Australia. The Tribunal has obtained fresh copies of both those records, and has relied on them in reaching its decision.

    Did the applicant comply with Condition 8202?

11. 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)

    ·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).

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

13. On the basis of the evidence noted above, the Tribunal finds, as relevant to the issue of whether the applicant did in fact breach condition 8202 on his visa, that:

    a.On 19 January 2018 the applicant was granted a sub-class TU-500 Temporary (Student) visa, expiring on 15 March 2021, in order to study the package of courses noted at paragraph 6 above. The dates for those courses were as follows:

    i.Diploma of Commerce: 21 February 2018 to 26 January 2019; and

    ii.Bachelor of Commerce: 25 February 2019 to 31 December 2020.

    b.The applicant arrived in Australia on 19 February 2018 and commenced studying for his Diploma of Commerce shortly afterwards.

    c.On 26 July 2018 the applicant’s enrolments for both his Diploma of Commerce and Bachelor of Commerce courses were cancelled.

    d.The applicant enrolled in a Bachelor of Business course at Stanley College on or about 5 August 2019, which course was scheduled to run from 26 August 2019 to 17 June 2022.

14. The evidence supporting the Tribunal’s finding in paragraph 13(c) above was found both in the Delegate’s decision record and the applicant’s PRISMS record. The applicant’s PRISMS record was put to him in the course of hearing pursuant to, and in strict compliance with, s.359AA of the Act. At hearing, the applicant readily admitted that information to be true. The Tribunal notes that in his response to the Department’s NOICC, the applicant implicitly accepted that he had breached condition 8202. At hearing, the applicant stated, without hesitation, that he accepted he had been in breach of his visa condition.

15. On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course between 26 July 2018 and 5 August 2019. Accordingly, the applicant has not complied with condition 8202(2)(a).

    Consideration of the discretion to cancel the visa

16. 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’.

17. The applicant’s evidence at hearing was that he came to Australia for the sole purpose of undertaking and completing the package of studies set out in paragraph 6 above, with a view to returning to Nepal at the end of his studies and helping his father in running the family businesses. He described those businesses at hearing as, firstly, a transport business servicing other businesses involved in importing and exporting across the Nepalese/Chinese border and, secondly, as a small local hotel business. His evidence was that he had already paid some AUD16,405 towards his course fees by the date when he started studying for his Diploma of Commerce, and that these were his fees for the first semester of his course alone. The Tribunal accepts the applicant’s evidence on this point. That is a significant amount, and strongly supports the applicant’s evidence as to the purpose of his journey to Australia. The applicant also gave evidence that he had completed his secondary education in India at good schools, and that he and his father had been determined that he should obtain further, higher, qualifications overseas. Again, that evidence is consistent with the applicant’s statement of the purpose of his journey to Australia. There is no contradictory evidence before the Tribunal, and the Tribunal finds that the applicant did indeed come to Australia in order to study the courses stated above. The Tribunal gives this evidence and these findings some weight in favour of the applicant.

18. There is no evidence before the Tribunal of any breaches of visa conditions other than the breach that the subject of the findings made in paragraph 6 above. The Tribunal notes that the Delegate accepted that this was the case, at least as at the date of the Minister’s decision. This weighs to some extent in the applicant’s favour. Nonetheless, the applicant’s breach of condition 8202 lasted from 26 July 2018 to 5 August 2019, a little over a year. That is a very substantial length of time, and a very serious breach. Taken by itself, it would weigh strongly against the applicant. Before giving it that weight it is, however, necessary to consider the circumstances in which the breach arose, continued, and was eventually ended.

19. The applicant’s evidence was that his breach of condition 8202 arose because his grandmother (who was living in Nepal at the time) became seriously ill with lung disease. The document referred to in paragraph 9(a) corroborate that statement amply, and the Tribunal accepts this evidence. The applicant stated that he is very close to his grandmother (and indeed his grandfather) who live in the applicant’s family home in Nepal and have done so for many years, and that he now realises that his grandmother must have been quite ill for a number of years but that his parents kept the seriousness of her condition from him. In late April or early May 2018, only months after he had arrived in Australia and started his studies, his grandmother’s health declined to such an extent that she had to be hospitalised, and that her family were warned to prepare for her death. The applicant returned to Nepal to be with his family on 7 May 2018. After about two weeks his grandmother’s condition had improved to such an extent that she returned to the family home, and the applicant returned to Australia to continue his studies.

20. The applicant went on to state that he arrived back in this country on 19 May 2018, and that shortly afterwards, his grandmother’s condition declined even more seriously. He was, once again, called home to be with his family. The summons was so urgent that he left without arranging his absence with his college, and without arranging his enrolment for the second semester of 2018. He returned on 20 July 2018, once his grandmother was out of immediate danger, and found that he had missed enrolling for semester 2 by the required date. He then spoke to his college authorities with two ends in mind. The first was to obtain permission to re-enrol for second semester despite having missed the cut-off date. The second was to arrange an instalment plan for the payment of his course fees. He had not needed an instalment plan for the first semester, but his father’s businesses had suffered during the time of his grandmother’s medical emergencies, and funds were not available up front for second semester course fees. His evidence was that his college would have allowed him to re-enrol if he had been able to pay the second semester fees in one payment, but would not allow him to pay in instalments (although that would have been possible if he had enrolled in time). He decided to cancel his enrolments and seek other courses, and wrote to his course providers withdrawing from his courses on or about 26 July 2018. His enrolments were duly cancelled on that date. The Tribunal accepts this evidence.

21. The applicant was asked at hearing whether he had realised when he cancelled his enrolments that he would be in breach of his visa conditions, and if so, why he had decided to stay in Australia after his enrolments had been cancelled.  He said that he had realised at the time that he needed to be enrolled in a full-time course in order to comply with his visa conditions, but said that his migration agent had advised him that he had a 28 day grace period in which he could enrol in other courses. He repeated that he had intended to find other, less expensive, courses to enrol in, and said that he had been trying to organise such enrolments when his part of Nepal had suffered floods and landslides. He provided the document noted in paragraph 9(b) above as proof of that evidence. The Tribunal accepts that this was the case. The applicant stated that his home village, and the base of his family’s transport business, is very close to the border between Nepal and China, which at that point follows the course of the Bhotekoshi River and is the site of one of the few border crossings between China and Nepal. The crossing-point bridge had already been damaged in earthquakes and the floods and landslides left it and the main highway damaged and unusable. Both the applicant’s family’s business were badly affected by these events, and they had to leave their house. Funds for the applicant’s studies became difficult to find, with the result that he was unable to re-enrol as planned, but also that he was unable to return home. In addition, the applicant’s relationship with his girlfriend of some 6 years ended when she left Nepal for the United States and married there.

22. The submissions mentioned in paragraph 8(b) above described the applicant as suffering from depression at this time. The Tribunal asked the applicant at hearing whether he had been suffering from depression, and if so, whether he had sought and received medical treatment. His response was that he did not think he had been clinically depressed, but did think that he had become withdrawn and that his judgment was affected. He stated that he did not seek medical treatment. He also stated that at this time he had felt unable to tell his family what had happened with his studies, because his father had always wanted him to obtain a degree. The Tribunal finds this account of the applicant’s condition at the time plausible in the circumstances discussed above. The applicant stated that he decided to try and find work to save for his fees, and to attempt to re-enrol for the beginning of 2019. He added that at no time had he worked for longer hours than were permitted under his visa. There is no evidence before the Tribunal to the contrary.

23. The applicant went on to state that in or about early 2019 he had learned of a Bachelor of Business course that was to be offered by Stanley College in Perth, at fees approximately half of those he had originally been paying. He took steps to enrol in that course, and was ultimately given a place on or about 5 August 2019. The document referred to in paragraph 8(d) above proves that enrolment, which marked the end of the applicant’s breach of his visa condition. However, his visa was cancelled by reason of that breach in September 2019. The applicant volunteered the information that he had completed the first semester of that course, but had been prevented from completing the second semester by the advent of the COVID-19 pandemic.

24. The Tribunal finds that the applicant’s breach of his visa condition was largely the result of circumstances beyond the applicant’s control, as was the length of that breach. Although  various decisions made and steps taken by the applicant contributed to both the breach and its continuation, those steps and decisions were not unreasonable in context. Whilst the nature and length of the applicant’s breach continue to weigh against him, the matters discussed above significantly diminish that weight.

25. The applicant was also asked at hearing whether he had any compelling need to travel in or remain in Australia, both presently and in the future. His response was that he had an immediate need to remain in Australia so that he could pursue his studies. He also gave evidence to the effect that he has entered into a relationship with an Australian permanent resident, who is studying nursing at Murdoch University. He stated that he would wish to be in a position to enter Australia to be with her, should he leave the country. The Tribunal accepts this evidence, but notes that beyond the applicant’s desire to finish his studies in Australia his need to be able to enter this country is somewhat dependant on such matters as the continuation of his relationship and his partner’s decisions as to where she will live once she finishes her studies. The Tribunal therefore gives this factor only a little weight in favour of the applicant.

26. The applicant has claimed that he and his family will suffer financial hardship if his visa is cancelled, in that the course fees his family have paid to date will be wasted. He has also claimed that he will suffer the emotional hardship of disappointing his family, who have sacrificed a good deal to give him the opportunity to study in Australia. The Tribunal accepts that this is the case, and gives this factor some weight in favour of the applicant.

27. There is no evidence before the Tribunal suggesting that the applicant has been uncooperative or has in any sense acted in bad faith in his dealings with the Department. The Tribunal notes that the Delegate accepted that this was so as at the date of the cancellation decision. The Tribunal gives this circumstance some weight in the applicant’s favour.

28. There is no evidence before the Tribunal that cancellation of the applicant’s visa would entail the cancellation of any other person’s visa under s.140 of the Act. The applicant accepted at hearing that this was the case. The Tribunal therefore gives this factor no weight, either for or against the applicant.

29. Cancellation of the applicant’s visa will entail certain mandatory legal consequences. If he does not leave Australia voluntarily, he will become an unlawful non-citizen for the purposes of the Act and may be detained under s.189 and removed under s.198 of the Act. Section 48 of the Act would limit the classes of visa for which the applicant would be entitled to apply whilst in the migration zone, and Public Interest Criterion 4013 would prevent him from being granted certain classes of temporary visa (including a student visa) for a period. The Tribunal gives this factor a little weight in the applicant’s favour.

30. In his submissions to the Department in response to the NOICC, the applicant’s representative claimed that cancellation of the applicant’s visa would involve a breach of Australia’s obligations under the International Covenant on Civil and Political Rights (ICCPR), in that he would denied his right to a fair trial, a fair hearing, and the presumption of innocence the subject of Article 14 of the ICCPR. The applicant was asked at hearing whether he maintained that position. He was uncertain whether he wished to or not, the point having been raised by his migration agent originally. The Tribunal gave the applicant an opportunity to contact his migration agent to discuss the matter. The applicant did not take that opportunity, but rather asked the Tribunal to deal with the point has it had been raised in submissions before the Delegate.

1. Article 14 of the ICCPR obliges signatory states, of which Australia is one, deals largely with the rights of persons facing criminal charges. However, clause 1 also refers to “the determination of … [a person’s] rights and obligations in a suit at law.” It declares the right of a person facing such a determination to “a fair and public hearing by a competent, independent and impartial tribunal established by law.” The clause goes on to allow for the exclusion of the public from such a hearing in certain circumstances, none of which are directly applicable in this case. The application of this clause to an administrative process such as that undertaken by the Delegate in deciding to cancel the applicant’s visa is unclear, but if it obliges a signatory state to provide procedural fairness in the ordinary sense of the term, then the Tribunal considers that the Delegate’s decision met that requirement. However, as this is a merits review, that is strictly beside the point. The review application process is clearly not criminal proceedings. To the (doubtful) extent that it qualifies as a “suit at law” the review application process does not involve any breach of the applicant’s rights under Article 14, and therefore no breach of Australia’s international obligations. The evidence before the Tribunal does not reveal any other possible breach of Australia’s international obligations. The Tribunal finds that this factor has no application in the current case, and gives it no weight, either for or against the applicant.

2. The Tribunal has considered the evidence before it and the applicant’s submissions in order to determine whether they raise any relevant consideration not already discussed above. It has determined that they do not.

3. Considering the circumstances as a whole, the Tribunal concludes that the favour the applicant and that consequently the visa should not be cancelled.

   DECISION

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

   David Thompson
   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.