Shrestha (Migration)

[2018] AATA 5905

Shrestha (Migration) [2018] AATA 5905 (6 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Archana Shrestha
Mr Samyong Baral
Master Lucas Baral

CASE NUMBER:  1620538

HOME AFFAIRS REFERENCE(S):           BCC2016/3312426

MEMBER:Justin Owen

DATE:6 December 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Class TU visa.

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 06 December 2018 at 12:16pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary)(Class TU) visa – Subclass 573 Higher Education Sector – the applicant was not enrolled in a registered course – significant period of non-enrolment – extent of the applicant’s compliance with visa conditions – domestic violence, family and health issues affected study – no jurisdiction for other applicants – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 48, 116, 140, 189, 198, 348, 362B, 379A(5)
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 29 November 2016 made by a delegate of the Minister for Immigration and Border Protection to cancel the first named applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The applicant is a national of Nepal born 1 September 1982.  Her Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa was granted on 4 August 2015 and was subject to condition 8202.  On 14 November 2016 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate considered that the applicant did not comply with condition 8202 of her visa, as she ceased to be enrolled in a registered course since 19 November 2015.  The applicant responded to the NOICC on 21 November 2016.  On 29 November 2016 the delegate decided to cancel the visa held by the applicant on the basis that the applicant breached condition 8202 of her visa.      

3. The delegate cancelled the visa on the basis that the applicant has not complied with the requirements of condition 8202 (2)(a) of 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.

4. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicants.

5. The applicants were represented in relation to the review by their registered migration agent.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   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.

8. On 5 December 2016 the Tribunal wrote to the applicant and advised it had received an application for a review of the delegate’s decision to cancel her Subclass 573 Higher Education Sector visa.

9. On 16 November 2018 the Tribunal invited the applicant to attend a hearing to give evidence and present arguments relating to the issues in her case on 4 December 2018.

10. On 19 November 2018 the applicant telephoned the Tribunal after receiving the invitation. The applicant inquired about what a hearing is and what does she need to do to prepare for the hearing.  The Tribunal provided the applicant with relevant information.

11. The Tribunal sent a courtesy reminder of the hearing via SMS to the mobile telephone number the applicant provided on 27 November 2018 and 3 December 2018.

12. The applicant did not return a completed Response to Hearing invitation form to the Tribunal.  No further contact was made by the applicant or her representative to the Tribunal after the telephone conversation of 19 November 2018.  The Tribunal notes its invitation stated that if the applicant did not attend the scheduled hearing then the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it. 

13. The applicant did not appear before the Tribunal on the day at the scheduled time and place. The applicant has not provided any further evidence, submissions or information to the Tribunal between the hearing and decision.  Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to a hearing in accordance with s.379A(5) and the invitation has not been returned to sender.

14. In these circumstances, and pursuant to s.362B of the Migration Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

    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 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).

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

17. When making the application for review, the applicant supplied the Tribunal with a copy of the delegate’s decision of 29 November 2016. The decision record states that information before the Department from the Provider Registration and International Student Management System (PRISMS) indicated that the applicant had not been enrolled in a registered course of study since 19 November 2015. 

18. The delegate’s decision record states that the Notice of Intention to Consider Cancellation (NOICC) was sent to the applicant on 14 November 2016 and the invited the applicant to respond in writing.  The applicant responded on 21 November 2016.  The decision record the applicant provided states the applicant did not dispute that there are grounds for cancellation.   The applicant also provided the Tribunal with her submission (prepared by her representative) to the delegate dated 18 November 2016 (T1, Folio.5-6).  The applicant does not dispute in her submission that there are grounds for cancellation. In the applicant’s submission it is stated ‘We are aware of failing to be enrolled in a course for the past 12 months’ (T1, Folio. 6).   

19. The applicant has not made any further written submissions to the Tribunal since making her application for review.  The applicant failed to appear before the scheduled Tribunal hearing to provide oral evidence. 

20. On the evidence before the Tribunal, 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

21. 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.’

22. The Tribunal has considered the purpose of the applicant’s travel to and stay in Australia.  The Tribunal notes from the decision record that the applicant had stated in her application that her purpose of travel to and stay in Australia was study.

23. The Tribunal considers that the purpose of a student visa is to enable the visa holder to study in Australia.  The primary decision record indicates that PRISMS evidence available to the Department indicated the applicant ceased to be enrolled between 19 November 2015 and the time of decision on 29 November 2016.  The Tribunal considers the breach of condition 8202(2) to be significant and that the applicant had not been fulfilling the purpose of her travel to and stay in Australia as a holder of a student visa. 

24. The Tribunal has noted the submissions the applicant provided to both the Department in her response to the NOICC and to the Tribunal.  The Tribunal has before it her submission dated 18 November 2016; a psychologist report from Mr H.R. Dadgostar (T1, Folio.7-9); a provisional Apprehended Domestic Violence Order from 15 September 2016 which directs the defendant to attend Burwood Local Court on 22 September 2016 (T1, Folio.10-11) and a Court Attendance Notice where the defendant, the husband of the applicant has been charged with common assault domestic violence related charges from incidents on 13 September 2016 and 14 September 2016 (T1, Folio.12). 

25. In her submission of 18 November 2016 the applicant has stated that her failure to maintain enrolment was as the result of a number of events that ‘occurred out of her control’. 

26. It was submitted that the applicant had been under an increased amount of stress predominantly caused by her husband and recent issues of domestic violence as well as other ongoing issues with her husband of (at that time) twelve years; the loss of family members in Nepal due to the 2015 earthquake; her separation from her (at that time) five-year old son; and the suicide of her younger brother-in-law in Australia.   

27. The Tribunal notes there is no evidence before it or claim made that the applicant ever attempted to secure a deferral of her studies from her education provider given these events. There is no evidence before the Tribunal or claim made that the applicant made any contact with the Department during her period of non-compliance with the conditions of her visa.  

28. The Tribunal notes the numerous issues the applicant has raised concerning her husband and the impact his behaviour as had upon her ability to study as well as her broader mental health.  The Tribunal notes the criminal charges that were laid against the applicant’s husband for common assault as well as the provisional Apprehended Domestic Violence Order.  The Tribunal has some sympathy for the applicant and places some weight on this information for not cancelling the visa.  The Tribunal notes however that these allegations and charges pertain to actions from over two years ago.  In her submission she stated that ‘sentencing will occur in January 2017 but there is no evidence before the Tribunal as to whether the applicant’s husband was convicted of these charges.  There is no evidence of the renewal or imposition of any further Apprehended Domestic Violence Order. The Tribunal furthermore notes that the incidents that have been listed on the provisional Apprehended Violence Order and the subject of the criminal charges occurred in mid-September 2016 which is some ten months after the applicant ceased her enrolment in an approved course of study. 

29. The Tribunal notes the initial psychological assessment report of H.R. Dadgostar.  That states ‘the presence of high level Clinical Depressive symptoms’ (T1, Folio.8).  The Tribunal notes from the decision record the applicant provided that this report was dated 17 November 2016, which is after the issuance of the NOICC to the applicant on 14 November 2016.  There is no evidence or claim made before the Tribunal of any further medical or psychological treatment she has been receiving in the two years since. 

30. The applicant has made a range of claims concerning her husband’s medical and alcohol-related conditions; the loss of family members in the Nepal earthquake and the suicide of her brother-in-law as impacting upon her ability to study.  Other than the psychologist’s report there is no other evidence before the Tribunal to corroborate any such claims. 

31. Based upon the evidence of her significant period of non-enrolment, the Tribunal is of the view that the applicant was not in Australia for a significant period of time in accordance with the original purpose of her visa.  The Tribunal finds that between 19 November 2015 and the delegate’s decision on 29 November 2016 the applicant was not fulfilling the purpose of her travel to and stay in Australia as the holder of a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa. 

32. Given the applicant’s actions in failing to fulfil the purpose of her visa for a significant period of time, the Tribunal weighs this factor in favour of cancelling the visa.  The Tribunal has some sympathy for the applicant’s claims concerning family violence and her husband, but in the absence of any further evidence the past 26 months and acknowledging the allegations relate to events that occurred ten months after the cessation of the applicant’s enrolment in an approved course of study, the Tribunal puts limited weight on this information for not cancelling the visa.  On the evidence before it concerning the purpose of the applicant’s travel to and stay in Australia, it the Tribunal weighs this factor in favour of cancelling the visa.

33. The Tribunal has considered the extent of the applicant’s compliance with visa conditions.

34. The Tribunal is of the firm view that visa holders are expected to both study, and study at the visa subclass level for which they were approved at the time of application. On the evidence before the Tribunal, this has not been the case with the applicant.  The Tribunal considers the applicant’s failure, as outlined in the decision record, to comply with the conditions of her visa by not being enrolled in a registered course of study for over one year at the time of decision to be substantial.  There is no evidence before the Tribunal or claim made that the applicant has rectified this situation in the 24 months since the cancellation of her visa.  The Tribunal considers the applicant’s non-compliance with her visa conditions to be considerable.  On the evidence before it the Tribunal weighs this factor in favour of cancelling the visa.

35. The Tribunal has considered the degree of hardship that may be caused to the applicant or her family members should her student visa be cancelled.

36. The decision record the applicant provided stated that the applicant did not specifically address any matters of hardship that may be caused as a result of the cancellation of her visa.  The Tribunal has reviewed the applicant’s submissions to the delegate and the Tribunal.    The applicant has not provided the Tribunal with any specific information concerning the hardship that may be caused to her or her family should her student visa be cancelled.  The Tribunal notes the applicant’s claim that her dream was to graduate with a Bachelor degree and return home to secure a better future for her son and support her husband.  The Tribunal accepts that that desire may be adversely impacted through the cancellation of her visa.  The Tribunal notes however that the applicant moved her studies from accounting, to hairdressing and now claims to have a keen interest in business and information technology.  The applicant’s representative in her submission stated that the Holmes Institute were ‘supportive, but unable to make a decision because, of course, Archana (the applicant) has breached her visa conditions for 12 months.’  The Tribunal notes that cancellation may impact adversely upon the applicant’s desire to study in the future in Australia.  The Tribunal notes that the applicant retains the opportunity to study either in Nepal or she can apply elsewhere offshore.        

37. The Tribunal has considered the hardship to the applicant’s family.  The applicant has not specifically addressed the matter of hardship to her family as a result of her visa cancellation.  The Tribunal notes from the decision record that departmental records indicated that her child’s location is offshore.  Her submission states that in September 2015 she sent her son to Nepal to start school in a private institution and live with his grandparents.  She wrote that her son was now settled in in Nepal.  She wrote that this separation understandably caused her ‘extreme emotional pain and separation anxiety.’  The Tribunal notes that the applicant will be able to reunite with her son in Nepal.  The Tribunal does not consider the cancellation will cause any hardship to the applicant’s son.  The Tribunal notes the claims that have been made by the applicant concerning her husband. The Tribunal notes it has no evidence before it as to the outcome of any claims and charges relating to domestic violence.  There is no corroborative evidence before the Tribunal as to the assistance she claims to have provided her husband previously in relation to his own mental health and alcohol-related problems.   The Tribunal weights this factor in favour of cancelling the visa. 

38. The Tribunal has considered the mandatory legal consequences of a cancellation decision. The Tribunal notes that the applicant will become an unlawful non-citizen if her visa is cancelled and may be liable for detention under s189 and removal under s198 of the Migration Act if she does not voluntarily depart Australia. She will also be subject to an s48 bar which will limit her options in applying for further visas in Australia. The Tribunal notes that the applicant will be subject to Public Interest Criterion 4013 as a result of the cancellation and may not be granted a temporary visa for three years from this date except in certain circumstances. The Tribunal however also notes that if her visa is cancelled, the applicant may be eligible to apply for a Bridging Visa E to allow her to remain in Australia to finalise any outstanding matters and visa applications that have been lodged. On the evidence before it concerning the degree of hardship, the Tribunal weighs this factor in favour of cancelling the visa.

39. The Tribunal has considered the circumstances in which the ground for cancellation arose.

40. The Tribunal notes that as outlined in the delegate’s decision the applicant provided, the applicant was not enrolled in a registered course of study from 19 November 2015 until the time of decision on 29 November 2016. The applicant’s written submission stated that her representative had approached the Holmes Institute with the goal of securing a new enrolment but they were ‘unable to make a decision at the moment’.  There is no evidence before the Tribunal or claim made that the applicant has subsequently enrolled in a registered course of study between the time of the delegate’s decision and the Tribunal’s decision over two years later.

41. The applicant has claimed through her representative that the circumstances that led to the applicant breaching her visa conditions were ‘out of her control’. It was submitted that the applicant had been under an increased amount of stress predominantly caused by her husband and recent issues of domestic violence as well as other ongoing issues with her husband of (at that time) twelve years; the loss of family members in Nepal due to the 2015 earthquake; her separation from her (at that time) five-year old son; and the suicide of her younger brother-in-law in Australia.   

42. In support of these claims the applicant submitted to the Tribunal her original NOICC response dated 18 November 2016; a psychologist report from Mr H.R. Dadgostar (T1, Folio.7-9); a provisional Apprehended Domestic Violence Order from 15 September 2016 which directs the defendant to attend Burwood Local Court on 22 September 2016 (T1, Folio.10-11) and a Court Attendance Notice where the defendant, the husband of the applicant has been charged with common assault domestic violence related charges from incidents on 13 September 2016 and 14 September 2016 (T1, Folio.12). 

1. The Tribunal notes the claim that the applicant at the time of the delegate’s decision had been married to her husband for twelve years and that once they were in Australia her husband became an alcoholic and extremely violent.  The applicant claims she learnt to live with the violence. 

2. The Tribunal notes however that the corroborative evidence before it pertaining to the claims of family violence date from mid-September 2016 – some ten months after the applicant ceased her enrolment in an approved course of study.  The Tribunal notes that criminal charges were laid against the applicant’s husband for common assault but there is no evidence of any outcome.  In her submission she stated that ‘sentencing will occur in January 2017’ but there is no evidence before the Tribunal as to whether the applicant’s husband was convicted of these charges.  There is no evidence of the renewal or imposition of any further Apprehended Domestic Violence Order beyond the provisional Order from September 2016.   Over two years has now elapsed since these claims and no further evidence has been submitted or claims made to the Tribunal. 

3. The applicant’s period of non-compliance commenced on 19 November 2015.  The incidents of family violence that have been claimed via the provisional apprehended domestic violence order and the court attendance notice pertains to events that allegedly occurred some ten months after the applicant  ceased her enrolment in a registered course of study.  The Tribunal gives the claims pertaining to domestic violence limited weight as the circumstances in which the ground for cancellation arose. 

4. The applicant has provided an initial psychologist’s report from H.R. Dadgostar dated 17 November 2016.  The Tribunal has considered the report.  The report states the date of assessment is 16 November 2016 (T1, Folio.9). The Tribunal notes the applicant received the NOICC on 14 November 2016, some two days prior to the assessment.  Whilst the report states the applicant was referred ‘in regards to her mental state in the period of the 30^th August 2015 to the present’ (T1, Folio.9) there is no evidence of the applicant seeking or receiving any treatment for her mental health either prior or since Mr Dadgostar’s initial report of 17 November 2016.  The Tribunal gives the report in the circumstances little weight. 

5. The Tribunal notes that there is no corroborative evidence, other than the psychologist’s report, before it concerning the applicant’s claims concerning the suicide of her brother-in-law; the loss of family members in the Nepal earthquake and her husband’s medical conditions and alcoholism. 

6. The Tribunal is nevertheless prepared to accept on the evidence before it that the applicant has faced some challenging times that may have adversely impacted upon her ability to continue her enrolment in a registered course of study. The Tribunal however notes that there is no evidence before it or claim made that the applicant, given her claimed circumstances, ever approached her education provider or the Department either seeking a deferral or informing them of her non-compliance respectively.            

7. The Tribunal notes that the ground for cancellation arose due to the fact the applicant ceased enrolment with a registered education provider and subsequently failed to rectify her enrolment status in an adequate time.  The applicant on the evidence in the decision record had failed to adequately rectify her enrolment situation for over one year.   There is no evidence before the Tribunal or claim made that she has done so in the two years subsequent.  Given the applicant was a direct party to her enrolment; the Tribunal is of the opinion that on the evidence she would have been aware that he had ceased enrolment with a registered education provider.  The Tribunal furthermore notes that visa holders are expected to be mindful of the requirements of their visa and to inform the Department of any changes to their status.  The Tribunal is of the opinion that the applicant would have been well aware that her student visa contained condition 8202 which required her to remain enrolled in a registered course.  The Tribunal is of the firm view that the applicant would reasonably have been aware that her failure to remain enrolled with a registered education provider for over a year would have an impact upon her eligibility to continue to hold her student visa.  The Tribunal has taken into account the applicant’s claims concerning her husband and domestic violence as well as other ongoing issues with her husband; the loss of family members in Nepal due to the 2015 earthquake; her separation from her son; and the suicide of her younger brother-in-law in Australia.  The Tribunal has taken into account what the alleged impact these claimed events have had upon the mental health of the applicant both singularly and collectively and the impact these events have had upon the applicant’s enrolment.  On the evidence before it concerning the circumstances in which the ground for cancellation arose, the Tribunal weighs this factor in favour of cancelling the visa.

8. The Tribunal has considered the past and present behaviour of the applicant towards the Department.  There is no other evidence before the Tribunal concerning the applicant’s previous and present behaviour towards the Department in favour or against cancelling the visa. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa. 

9. The Tribunal has considered whether there are persons in Australia whose visas would, or may be, cancelled under s140 as a result of the cancellation of the applicant’s visa. The Tribunal notes from the decision record that Departmental records indicate that her son Master Lucas Baral (born 25 August 2010) and her husband Mr Samyoug Baral (born 24 May 1980) currently holds a visa because the applicant held her student visa. Therefore any cancellation of the applicant’s student visa will result in the automatic consequential cancellation of the visa of her son’s and husband’s visa under s140 (1) of the Migration Act. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.

10. The Tribunal has considered whether there are 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 of the applicant’s visa.

11. There is no information before the Tribunal which indicates that any cancellation would result in any breach of Australia’s international obligations. 

12. The Tribunal notes that the cancellation of the applicant’s visa would result in the cancellation of the visa of her son Master Lucas Baral who is currently eight years of age. The decision record the applicant provided indicates that the applicant’s son Master Lucas Baral is offshore.  In her submission of 18 November 2016 it was stated that in September 2015 the applicant’s son was sent to Nepal to start school in a private institute and to live with his grandparents.  In the submission it was stated that her son was now settled in in Nepal.  There is no evidence before the Tribunal that her son has returned to Australia.  Any cancellation of the applicant’s visa will also subsequently lead to the cancellation of the visa of her son’s father under s140(1).  There is therefore no issue of potentially separating the applicant’s son from either of his parents should the applicant’s visa be cancelled.

13. In its review of the applicant’s case the Tribunal has considered the United Nations Convention on the Rights of the Child and is satisfied there would be no breach of the Convention by the cancellation of this visa.    

14. On the evidence before it the Tribunal weighs this factor in favour of cancelling the visa.  

15. On the evidence before it the Tribunal considers the grounds for cancellation have been clearly made.  The applicant’s breach of condition 8202 of their student visa has been substantial.  The Tribunal considers the year-long period outlined in the decision record that the applicant failed to be enrolled in a registered course of study to be significant and notes there is no evidence before it or claim made that the applicant has re-enrolled (despite the claims in the applicant’s submission to have approached the Holme Institute in 2016) in any registered course of study in the two years since the delegate’s decision.  The Tribunal has carefully considered relevant factors for not cancelling the visa that have been put forward both to the delegate two years ago and in the applicant’s written submission and evidence to the Tribunal. The Tribunal has determined on the basis of the information before it that the visa should be cancelled. 

16. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

17. The Tribunal affirms the decision to cancel the first named applicant’s Class TU visa. The Tribunal has no jurisdiction with respect to the other applicants.

    Justin Owen
    Senior 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.