SHRESTHA (Migration)

[2020] AATA 50

SHRESTHA (Migration) [2020] AATA 50 (8 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Manjil SHRESTHA

CASE NUMBER:  1817583

HOME AFFAIRS REFERENCE(S):          BCC2018/819424

MEMBER:Helen Kroger

DATE:8 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 08 January 2020 at 3:01pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 500 (Student) – not enrolled in registered course – COE cancelled due to poor progress – family issues – financial support from parents – continued to study – 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 7 June 2018 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 applicant, Mr Shrestha, a Nepalese national, was granted a visa on 11 July 2017 for the purpose of continuing his studies in Australia, having been granted an earlier student visa in 2014.

3. On the 20 April 2018, Mr Shrestha was sent a Notice of Intention to Consider Cancellation (NOICC) of his student visa, inviting him to comment on a potential breach of condition 8202 which was imposed on his visa. The delegate received a response on the 17 May 2018 from Mr Shrestha, with reasons why the conditions attached to the visa were breached.

4. The delegate cancelled the visa on the basis that the applicant has not maintained enrolment in a registered course and the grounds for cancelling outweighed the grounds for not cancelling the visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. The applicant appeared before the Tribunal on 7 January 2020 via video conferencing, to give evidence and present arguments.

6. 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

7. 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?

8. 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).

9. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a full time registered course.  Mr Shrestha first arrived in Australia in 2014 for the purpose of studying a Certificate iii, Certificate iv and Diploma in Accounting, leading to a Bachelor of Business. Mr Shrestha was granted a second student visa on 11 July 2017, as he had not successfully completed any of the above mentioned courses and had secured a COE to complete a Diploma of Accounting leading to a Bachelor course at Sydney City College & Management. He was issued a Notice of Intention to Consider Cancellation (NOICC) on the 20 April 2018 and provided a written response to the Department on 16 March 2018 explaining the circumstances around the time that his COE was cancelled and the sequence of events at the time. At the hearing, the alleged breach (as discussed by the delegate in his/her decision record, and provided to the Tribunal by the applicant), was put to Mr Shrestha with regard to the alleged breach where his COE was cancelled on 7 June 2018 by the education provider due to his poor progress. The applicant did not dispute this finding and that his COE had been cancelled.

10. On the evidence before the Tribunal, namely the applicant’s admission during the hearing, the Tribunal finds that the applicant was not enrolled in a registered course of study. Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

11. 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’.

12. The information provided to the Tribunal at the hearing along with the applicant’s written explanatory statement to the Department has been considered by the Tribunal in its exercise of discretion as outlined below.

    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

13. The applicant is a Nepalese national who travelled to Australia for the purpose of studying and enrolled in a Bachelor of Business and Commerce at Western Sydney University, commencing with a Certificate iii in Accounting, transferring to Holmes Institute 2015 to study a Bachelor of Professional Accounting.  In his written response to the NOICC (DF 12), dated 16 March 2018, and in the written (TF 68 -72) and oral evidence (the evidentiary basis being the audio file) submitted to the Tribunal, the applicant claims that he was successfully progressing through his course, that commenced in 2015, and lost focus in the second year following an accident suffered by his mother in Nepal. He claims that he got behind in his studies, missing his exams, that lead to Holmes Institute cancelling his COE. Mr Shrestha submitted the academic transcript (TF 67) for this period that supports his evidence.  He indicated that he met with the campus director following the cancellation of his COE, a Mr Rob Relton, who advised him that there was no further action he could take as he had not successfully progressed through the course. He claims that he attempted to secure alternate enrolment unsuccessfully at that time. 

14. He subsequently secured enrolment at Sydney College of Management for a Diploma of Accounting, commencing on 12 February 2018 and completing on 20 January 2019 (TF 65) and is currently studying an Advanced Diploma in Accounting (TF 62), that he claims he will complete by the end of 2020.  He has secured enrolment for a Bachelor degree in Accounting at Torrens University, to commence in 2021. Mr Shrestha explained that Torrens University have indicated that he will be credited the 10 units from his Advanced Diploma towards the 24 units required in the Bachelor degree, so that he would complete his degree by 2023.

15. The tuition fees have been and will continue to be provided by his father. The applicant explained that when he first came to Australia, that his father, an Accountant, owned his own business and is now retired which has accordingly, changed their economic circumstances. His intention is to qualify so that he can return home as work as a qualified Accountant and help and support his extended family. Before arriving in Australia he worked in the accounting field.

16. The Tribunal has considered all the evidence before it, with particular regard to the applicant’s oral evidence. The Tribunal found the applicant persuasive in his honest, frank and candid responses, in speaking to his poor academic record when he first arrived in Australia and his ‘distraction’ following his mother’s accident to the approach he has taken since the cancellation of his COE. Notwithstanding the cancellation of his visa, the Tribunal has considered his enrolment and successful completion of the Diploma in Accounting, the completion of a third of the Advanced Diploma in Accounting and securing enrolment for a Bachelor degree at Torren’s University. The Tribunal finds the applicant compelling in his candid self-assessment and the approach taken to re-establishing his studies whilst recognising the extent of his earlier poor academic record. The applicant demonstrated a clear understanding of how many units he would be credited  towards his Bachelor degree, effectively reducing how many units he would need to complete,  indicating a considered approach to the completion of a Bachelor degree.

17. Whilst the Tribunal gives some weight to the period of time when the applicant was not enrolled in a registered course of study, it gives greater weight to the applicant’s subsequent successful completion of a Diploma in Accounting on 20 January 2019 and his current enrolment and academic progress in the Diploma of Advanced Accounting and enrolment in the Bachelor of Commerce at Torren’s University.

18. As such, the Tribunal finds these considerations outlined above outweigh any weight in favour of cancelling the applicant’s visa.

    The extent of compliance with visa conditions

19. There is nothing before the Tribunal to indicate that the applicant has breached other conditions of the visa. The Tribunal expects that a visa holder will generally adhere to the conditions of the visa and the Tribunal is mindful of the significance of the breach. As such, the Tribunal gives minimal weight to the fact that there appears to be no additional breaches.

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

20. The applicant was provided the opportunity at the hearing to comment on any hardship he or his extended family would suffer should his visa cancellation be upheld. Mr Shrestha indicated that he worked in Nepal as an assistant accountant with his family’s business prior to coming to Australia. He enrolled in Accounting courses so that he could return as a qualified Accountant, potentially enabling him to avail himself of greater employment opportunities, improving his personal and family opportunities. He indicated that since he came to Australia, his father has retired and no longer has a business, and that this has changed the family circumstances accordingly. His father continues to pay for his tuition fees whilst the applicant works on a casual basis as a baker, to support his rent in Australia and any further modest expenses.

21. Whilst the applicant does not claim any direct financial hardship should his visa cancellation be held, he indicated that an accounting qualification would enable him to get a better job on his return, and that he would be able to make a contribution to his family and help and support his parents in their retirement.  In his candid submission, he did not claim personal irretrievable loss, emotional or psychological trauma, but was persuasive in indicating the loss of opportunity that would be experienced.  He indicated that he has been offered a job in Nepal from his previous employer upon the completion of his Bachelor of Commerce and has kept his parents aware of his current circumstances, and indicated that they remained committed to financially supporting him until the conclusion of his studies.

22. The Tribunal has carefully considered all the evidence before it and the claims made by the applicant, in particular, the direct impact of completing his qualification so that he can graduate as an Accountant and the corresponding opportunities that this would provide. Whilst the Tribunal recognises that the applicant has breached the conditions attached to his visa by not successfully completing and passing the original courses he enrolled in, the Tribunal places greater weight on the financial, personal and economic hardships that may be caused should the visa cancellation be upheld. As such, the Tribunal finds that these considerations outweigh any weight given in favour of cancelling the applicant’s visa.

    Past and present behaviour of the visa holder towards the department

23. There is nothing before the Tribunal to indicate that the applicant has not cooperated with the Department or the Tribunal in his dealings. However, this is expected of all visa holders and should not outweigh the significance of the breach.

    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

24. It is unlikely that the visa applicant would be detained but rather provided with a time limited period in which he can leave the country or apply for review of the decision.

    Whether any international obligations would be reached as a result of a cancellation

25. There is nothing before the Tribunal to indicate there are international obligations to consider.

    Any other relevant matters

26. The Tribunal considers that it is not unreasonable to expect  visa holders to be fully aware and compliant with all conditions attached to the relevant visa granted and has considered the period of time that Mr Shrestha breached the continuous enrolment condition (8202(2)) in the context of his study period. At the same time, the Tribunal has considered the remedial action taken by the applicant by continuing to study and his successful completion of a Diploma in Accounting and progressing through an Advanced Diploma, whilst awaiting the outcome of his appeal to the Tribunal along with his honest and candid demeanour during the hearing.

27. The Tribunal has considered all factors both individually and cumulatively in the context of the breach and gives significant weight to the reasons why the applicant was not enrolled in a registered course of study and accords significant weight in favour of the applicant compared to any weight given in cancelling the visa.

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

    DECISION

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

    Helen Kroger
    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.