Shrestha (Migration)

Shrestha (Migration) [2019] AATA 6518 (15 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Anil Shrestha
CASE NUMBER:  1708369
HOME AFFAIRS REFERENCE(S):          BCC2017/952295
MEMBER:Gregory Sarginson
DATE:15 November 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 15 November 2019 at 3:35pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered higher education course ceased – consistent progress in studies – enrolment in short English course awaiting Masters commencement – family illness – large investment in Masters course – decision under review set aside
LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, Schedule 2; Schedule 8; Condition 8202
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 11 April 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant had not been enrolled in a registered course of study since 10 August 2016 and that the discretionary grounds for cancelling the visa 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.
The applicant appeared before the Tribunal on 14 May 2019 to give evidence and present arguments.
The Tribunal had access to the Department of Home Affairs file. Included in that file was the Notice of Intention to Consider Cancellation of Visa (‘NOICC’) issued by the Department, and the applicant’s written response to the NOICC.
Prior to the hearing, the Tribunal had also obtained a Provider Registration and International Student Management System (‘PRISMS’) record from the Department of Education, setting out the applicant’s history of course enrolments; and movement records setting out the applicant’s travel to and from Australia.
The applicant provided documents to the Tribunal in support of the application for review. Such documents were:
a)    A copy of the delegate’s decision dated 11 April 2017.
b)    Extract from passport.
c)    A medical report dated 3 May 2019 from Tribhuvan University Institute of Medicine in Nepal signed by Dr Thapa, Department of Cardiology, stating that the applicant’s father had “undergone PTMC two years back at this Centre” and “is on regular follow up and medication for the last two years”.
d)    Student card from Universal Business School Sydney (‘UBSS’) from 2017.
e)    Enrolment confirmation from UBSS dated 12 May 2019 that the applicant was enrolled in a Masters of Business Administration (MBA) course at UBSS with the duration of the course from 13 May 2019 to 13 December 2019.
f)     Record of the applicant’s academic results from UBSS for the MBA course. The record stated that the applicant had, since 2017, attempted 11 subjects and passed 10 subjects. The applicant had failed one subject.   Of the subjects passed, the applicant had obtained 6 passes (50%-64%) and 4 credits (65%-74%).
g)    Overseas Student Confirmation of Enrolment (‘CoE’) records in respect of a General English (Beginner to Advanced) course at Australian Management Skills Pty Ltd (trading as Global English College) for the period 27 March 2017 to 21 April 2017 and Masters of Business Administration course at Group Colleges Australia Pty Ltd (trading as UBSS) for the period from 8 May 2017 to 3 May 2019.
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
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?
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 registered course, or in limited cases, a full time course of study or training: 8202(2)
·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and
·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3) (b).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.
The delegate’s decision contained reference to the PRISMS record as of 11 April 2017. The record relevantly showed that the applicant’s enrolment in a Graduate Diploma of Business course had been cancelled on 10 August 2016. The reason identified was “non-commencement of studies”.
Response to NOICC
In a written response dated 24 March 2017 to the NOICC, the applicant stated that the reason for non-enrolment was that the applicant had completed a Bachelor of Professional Accounting degree on 9 November 2015 and applied for a Temporary Graduate (Class 485) visa.
While that application was being considered by the Department, the applicant decided to study for a Graduate Diploma of Business, and enrolled in a General English (Beginner to Advanced) course and a Graduate Diploma of Business course. The Graduate Diploma of Business course was at Holmes Institute. The applicant’s intention was to enrol in a Masters of Business Administration course.
The applicant studied for “a few weeks” in the General English (Beginner to Advanced) course, and was preparing to commence studying in the Graduate Diploma of Business commencing in the “June/July intake”. The applicant stated that he had decided to “postpone” applying for a Temporary Graduate (Class 485) visa.
The applicant stated that he started to suffer “health issues” (being severe headaches and weakness) and sought to defer his studies in the Graduate Diploma of Business Course, but the education provider refused to grant a deferment.
At the same time (June or July 2017) the applicant’s father in Nepal was admitted to hospital with a serious heart condition, and was hospitalised for 3 months. The applicant was worried about his father’s health and not focussed upon study.
By November 2016, the applicant believed he could wait until “term break” had finished before recommencing studies. When a friend told him he could not take a break from studying without being enrolled, he spoke to his education provider who informed him his enrolment had been cancelled, and he could not seek to re- enrol until the next Semester.
The applicant then spoke to a migration agent about again applying for a Temporary Graduate (Class 485) visa, but was informed he was not eligible because it was more than 6 months since he had completed his Bachelor of Professional Accounting degree.
The applicant stated that he intended to enrol in a Masters of Business Administration course commencing in May 2017, and his intention was to return to Nepal and either open his own accounting firm or seek employment as an accountant in a bank or “multinational company”.
Evidence to the Tribunal Regarding Enrolment
At the hearing, the applicant confirmed in his oral evidence that he was not enrolled in a registered course of study for the period from 10 August 2016 until enrolling in a General English (Beginner to Advanced) course commencing on 27 March 2017 and enrolling in a Masters of Business Administration course at UBSS commencing on 8 May 2017.
The applicant did not dispute that he had failed to comply with condition 8202(2) by maintaining enrolment in a registered course of study.
On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).
Consideration of the discretion to cancel the visa
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 Tribunal gives consideration to the discretionary grounds as follows:
Circumstances In Which the Ground of Cancellation Arose
The evidence of the applicant was that the main reason he was not enrolled from 10 August 2016 was his father’s health condition in Nepal. The applicant stated his father had a heart attack, and was hospitalised for 3 months. The medical report provided by the applicant to the Tribunal in support of the review application verifies that the applicant’s father did have a heart condition for which he received hospital treatment and ongoing medication, although it does not state the period in which the applicant’s father was hospitalised.
The Tribunal gives some weight to the evidence of the applicant that his father’s heart condition caused distressed to him and affected his ability to study.
The applicant gave evidence that there were other factors contributing to him ceasing to be enrolled in 2016, being his own health problems. However, no documentary evidence was provided to identify any medical condition the applicant may have been suffering from, or any treatment he received. Further, the applicant gave evidence that he had been performing part time work in a café at the relevant time, and the applicant’s health problems did not affect his ability to work. The Tribunal gives little weight to the evidence of the applicant regarding his own health problems as an extenuating circumstance as to why he ceased to maintain enrolment in a registered course of study.
Purpose of The Visa Holder’s Travel and Stay in Australia; Whether the Visa Holder Has A Compelling Need to Travel or Remain In Australia
The evidence of the applicant was that he arrived in Australia in July 2009 on a student visa, and had remained in Australia since then on either a valid student visa or a bridging visa. The applicant had unsuccessfully applied for a Temporary Graduate (Class 485) visa in 2016.
The applicant is currently 37 years old and his home country is Nepal.
The applicant gave evidence of the courses of study he had enrolled in and completed while he has been in Australia. His evidence was consistent with the information contained in the PRISMS record. Relevantly, the applicant had completed the following courses:
·     Certificate IV in Small Business Management-June 2010;
·     Diploma of Accounting-November 2012;
·     Bachelor of Professional Accounting-December 2015;
·     General English (Beginner to Advanced)-June 2016.
The applicant stated that after completing his Bachelor of Professional Accounting, he wanted to study for a Masters of Business Administration. However, the course in which the applicant wished to enrol at UBSS did not start until May 2017, so he enrolled in the General English (Beginner to Advanced) course and Graduate Diploma of Business course for the purpose of remaining enrolled, and with the intention of enrolling in a Masters of Business Administration course rather than completing the Graduate Diploma of Business course.
The applicant did enrol in an MBA course at UBSS commencing in May 2017 and a further General English course, but he enrolment was cancelled because his student visa was cancelled. While on a bridging visa, the applicant re-enrolled in the MBA course.
The applicant gave evidence that the MBA course ends in December 2019. The applicant stated that he had a further 5 subjects to complete the course and obtain his MBA.
The applicant stated that all of his family members are in Nepal. His father is 62 and continues to have health problems as a result of his heart condition. His mother is 26. The applicant also has a brother and married sister in Nepal.
The applicant stated that his intention is to complete his MBA degree and return to Nepal. The applicant stated his intention was to obtain employment as an accountant, either by working in a self-employed capacity, or at a bank or accountancy firm. The applicant stated that he wished to return to Nepal and his family wanted him to return. The applicant did not give evidence of any intention to remain in Australia to study or to apply for any other visas.
The Tribunal accepts that the purpose of the applicant’s travel and stay in Australia was to study. There is some concern by reason of the length of time the applicant has been in Australia, but militating against that is that there has never been any refusal of the applicant’s previous applications for a student visa. The applicant did make an unsuccessful application for a Temporary Graduate (Class 485) visa, but explained why he made that application and that he had changed plans to study for an MBA.
The PRISMS record supports the applicant’s evidence that he had consistently progressed in his studies. The PRISMS record contained reference to the applicant being enrolled in a Diploma of Management course in July 2010, and that this enrolment had been cancelled in December 2010 due to non-payment of fees. However, the applicant has subsequently completed a Diploma of Professional Accounting; a Bachelor of Professional Accounting; and is well advanced towards completion of an MBA.
The PRISMS record also verifies that the applicant enrolled in a General English course in 2016 (which he completed) and a Graduate Diploma of Business course. The applicant candidly gave evidence that his intention was to enrol in such courses to ensure that he remained enrolled in a registered course of study until he could commence an MBA course.
Although the length of time the applicant has been in Australia and the applicant enrolling in 2 courses in 2016 for the purpose of being enrolled in a registered course of study rather than with a genuine intention to complete the courses may indicate an intention not to remain in Australia temporarily for the purpose of study; the fact that the applicant has showed previous course progression and has enrolled in and completed the majority of the MBA course, together with his evidence of intending to return to Nepal upon completion of the MBA course, indicates that the purpose of the applicant’s travel and stay in Australia is genuinely for the purpose of study and on a temporary basis.
Extent of Compliance With Visa Conditions
There is no evidence before the Tribunal that the applicant has failed to comply with visa conditions.
Past and Present Behaviour of the Visa Holder Towards The Department
There is no evidence before the Tribunal that the applicant has acted dishonestly or misled the Department.
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
There is no evidence before the Tribunal that the applicant faces any adverse mandatory legal consequences upon his return to Nepal; or indefinite detention is a possible consequence of cancellation. Any provisions in the Act preventing a person from making a valid visa application without the Ministers intervention are of limited relevance in the circumstances of this matter where the applicant stated that he intends to return to Nepal upon completion of his MBA course.
Whether Australia’s International Obligations Would Be Breached As a Result of the Cancellation
There is no evidence before the Tribunal to indicate that Australia’s international obligations would be breached as a result of cancellation of the visa.
Whether There Would Be Consequential Cancellations under s 140 of the Act
There was no evidence before the Tribunal of any persons holding a visa as a consequence of the applicant holding a visa or any circumstances applicable to s 140 of the Act.
Degree of Hardship That May Be Caused to the Visa Holder or Family By Reason of Cancellation
The applicant stated that the hardship that would be caused to him by reason of the cancellation was that he and his family had invested a significant amount of money by reason of him studying in Australia, including his current MBA course. If the visa was cancelled, the applicant would suffer hardship because the course fees he paid for the course would be wasted. The applicant’s family would be disappointed with him. The applicant would also have less employment opportunities in Nepal, returning with his highest qualification being a Bachelor of Professional Accounting rather than a Masters of Business Administration.
The Tribunal gives significant weight to this discretionary ground. While the disappointment of the applicant’s family is not a matter that carries significant weight of itself, it is important that the applicant enrolled in the MBA course and the evidence before the Tribunal is that he has successfully completed most of the course. In such circumstances, the Tribunal accepts that cancellation of the visa would cause significant hardship to the applicant.
If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
The visa is a temporary visa, and this ground is not relevant to the application for review.
Any Other Relevant Factors
There are no other relevant factors.
Conclusion
Having considered the discretionary grounds and weighed the evidence regarding each of the grounds, the Tribunal is satisfied that the grounds in favour of exercising the discretion not to cancel the visa outweigh the grounds in favour of the visa being cancelled.
Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.
Gregory Sarginson
Member

ATTACHMENT
Migration Regulations 1994
…
Schedule 8
8202(1) The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).
(2)A holder meets the requirements of this subclause if:
(a)the holder is enrolled in a registered course; or
(b)in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student — the holder is enrolled in a full time course of study or training.
(3)A holder meets the requirements of this subclause if neither of the following applies:
(a)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:
(i)section 19 of the Education Services for Overseas Students Act 2000; and
(ii)standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;
(b)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:
(i)section 19 of the Education Services for Overseas Students Act 2000; and
(ii)standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007
(4)In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa — the holder is enrolled in a full-time course of study or training.

[2019] AATA 6518

15 November 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Remedies

Natural Justice