Thapa K C (Migration)

[2023] AATA 2181

Thapa K C (Migration) [2023] AATA 2181 (12 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Binita Thapa K C

CASE NUMBER:  2207570

HOME AFFAIRS REFERENCE(S):          BCC2021/1035580

MEMBER:Michael Bradford

DATE AND TIME OF

ORAL DECISION AND REASONS:         12 May 2023 at 12:20 pm (NSW time)

DATE OF WRITTEN RECORD:                22 June 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision under review.

Statement made on 22 June 2023 at 11:33am

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – applicant did not maintain enrolment in a registered course– breached condition 8202 – an extensive period of non-enrolment – intermittent migraine headaches – no credible medical evidence  – decision under review affirmed

LEGISLATION
Migration Act 1958, s 116

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs who, on 19 May 2022, cancelled the applicant’s Subclass 500 Student (Temporary) (Class TU) visa under the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant had not complied with condition 8202(2)(a) in that she had not been enrolled in a registered course of study during the period from 19 February 2021 to 22 April 2022 (the relevant period).

3. The visa, which had been granted to the applicant on 11 November 2020, replaced an earlier Student (TU) 500 visa which had been granted to her on 23 August 2019.

4. There is no issue that the subject visa was granted to the applicant on that condition, among others, and that she has been in breach of it.

5. The decision was made on 19 May 2022.  The Review Application was filed on 24 May of that year and is therefore within time.

6. At the hearing on 12 May 2023 the Tribunal made an oral decision which affirmed the delegate’s decision and gave an oral statement of reasons for that decision.

7. What follows is the written record of those reasons.

   Procedural aspects, oral and documentary evidence

8. The hearing was initially scheduled to take place on 14 April 2023 but, for reasons I need not go into, it was vacated and re-scheduled for today.

9. Although the applicant did not respond to either of the Hearing Invitations by returning a completed Hearing Response Form, as she was requested to do, she did inform the Tribunal on or about 10 May 2023 that she wished to have a Nepali interpreter at the hearing. Consequently, arrangements were made for an interpreter to attend the hearing and most of her oral evidence was given through him.

10. The applicant appeared to me to have a limited understanding of spoken English. She said, and I accept, that she also has limited English reading abilities.

11. Apart from the documents in the Tribunal file, and there are only a few of them, I have seen a paper file from the Department which contains a copy of the NOICC and the decision itself, a copy of the applicant’s email to the Department of 20 March when she responded to a request for an update of her contact details, and a copy of the PRISMS record which the delegate had access to for the purposes of issuing the NOICC and, in the events which occurred, provided the evidentiary basis for his decision to cancel the visa.

12. In addition to those documents, I have been provided with an updated PRISMS record relating to the applicant’s studies in Australia, and a Movements Details record. Having discussed much of the information in these records with her, none of it is controversial.

13. Although I can accept much of what the applicant has told me today very little of it assists her case. In particular, the evidence concerning her medical issues does not convince me that she has been unable to engage in productive study because of them. Ordinarily credible medical evidence is required to corroborate an applicant if the case involves an assertion of this kind. Particularly is this so in a case which involves, as this one does, an extensive period of non-enrolment.

14. Thus, whilst I can accept that she has suffered from migraine headaches from time to time, I simply do not accept that she has been unable to engage in productive, or indeed any, studies since February 2021 simply because of them. This is a case which, on the applicant’s own account, involves an absence of study since February 2021, now more than 2 years and 3 months ago.

15. For the reasons which follow, I have concluded that the delegate’s decision to cancel the applicant’s visa should be affirmed.

    The process which led to the cancellation  

16. The NOICC was served on 26 April 2022.  After referring to the relevant provisions in Sec 116 of the Act and those in condition 8202, the delegate stated that the Department had information which indicated that she had not been enrolled in a registered course of study during the relevant period and therefore had not complied with sub-clause 2(a) of condition 8202.

17. The NOICC invited the applicant to respond within 5 working days after she was taken to have received it.  The applicant accepted that she received the NOICC on or about the date it bears. In the decision the delegate recites that no response to the NOICC had been received and the applicant today confirmed that she did not in fact respond to it. No explanation for this has been given.

18. I will not pause to reiterate the reasons which the delegate gave for cancelling the applicant’s visa except to say that I am broadly in agreement with them. The evidence she has given of events which have taken place since the decision was made does not assist her. The position now is no better than what it was at the time the delegate cancelled her visa in May 2022 and indeed, at least in some respects, it is worse.

19. It is clear, in my view, that it was open to the delegate to find that the applicant had been in breach of condition 8202 and that, consequently, there were grounds for cancellation under Sec 116(1)(b) of the Act. The applicant did not contend otherwise in the review.

20. Therefore, the issue for me on this application is whether, at the discretionary level, her visa should be cancelled.

    Approaching that issue

21. In considering the issue of whether a visa should be cancelled under the general cancellation power in Sec 116 there are no prescribed matters which the Tribunal must have regard to but, of course, the matters which the delegate referred to in this case are those set out in the Procedural Instruction Manual.

22. I will thus also have regard to them.

    Evidence and findings on the review

23. Much of the applicant’s oral evidence concerning her academic history in Australia is uncontroversial. She was born in Nepal in February 1986, arrived here on a Visitor’s visa in June 2019 and was granted a Student TU 500 visa in August of that year to study an English course which she in fact completed in July 2020.

24. She then enrolled in a Diploma of Community Services at a college in South Australia and began studies in that course in October of that year.  I accept her evidence that she only studied that course for 2 or 3 weeks.  She said that she became ill. I am not entirely clear on exactly the nature of her illness, although she did indicate to me that she had an issue with her uterus, as I understand it, and that she sought treatment in a local hospital where she was admitted overnight, apparently, put on medication and discharged the following day.

25. She also told me today, and I accept, that she travelled to Sydney to stay with her sister and attended St George Hospital but was not admitted. The medication seems to have alleviated her symptoms. She said that after about 3 months she went back to Adelaide.

26. She accepted that her enrolment in the Diploma of Community Services was cancelled in February 2021, this being not long after she had been granted another Student TU-500 visa to complete her studies in that course. In about March 2021 she enrolled in a Certificate III in Commercial Cookery at another college in South Australia. When asked the name of the college she could not recall it but accepted that her enrolment in the CIII was cancelled on 22 April 2022.

27. She appears not to have engaged in any studies in the CIII. I asked her whether it was correct that she had not studied since February 2021 when her enrolment in the Diploma of Community Services was cancelled and she accepted that it was. I pointed out to her that that was now more than 3 years ago, and again she accepted that to be the case.

28. So, by the time the NOICC was served in April 2022 the applicant had not been enrolled in a course of study since her enrolment in the Diploma was cancelled apart from her digression into the CIII, a course which she never studied. It may be that the period of non-enrolment specified in the NOICC was technically incorrect but nothing really turns on it because, on any view of the facts, the delegate was entitled to find that there had been a breach of condition 8202.

29. The applicant’s enrolment in the CIII is confirmed by PRISMS, a record which also confirms that it was cancelled in April 2022.

30. According to her oral evidence she also enrolled in a Hospitality package consisting of a Certificate IV in Commercial Cookery and a Diploma of Hospitality Management.  Exactly when she enrolled in these courses, I cannot say, because she was unable to inform me of that nor could she identify the provider. But, in any event, she accepted today that those enrolments were also cancelled for non-commencement of studies in September 2022.

31. So, once again, although there may have been further enrolments in the Hospitality package prior to September 2022 little turns on it because she accepts that she never attended any classes in the CIV before these enrolments were cancelled on 9 September of that year. She also accepts that she has not studied since.

32. The upshot of all of this is that the applicant, apart from a few weeks in 2020, has not engaged with any of the vocational courses in which she has been enrolled since she completed the English course in July of that year, now almost 3 years ago. Certainly, she has not provided any documentary evidence, in the form of interim transcripts, to suggest the contrary.

33. I am not satisfied on the evidence, such as it is, that her failure to engage in productive studies for that length of time has been adequately explained.

34. Although I am prepared to accept that she has had to contend with intermittent migraine headaches for which she was prescribed medication I do not, absent any credible medical evidence, accept that she has been unable because of them to engage in productive studies during that period, or any portion of it.

35. That being so, I agree with the delegate’s finding that the purpose of her stay in Australia is no longer in line with the purposes for which her Student visa was granted. Indeed, her situation now is much worse than what it was when the delegate made his decision because, at that stage, she had not been enrolled in a registered course, at least according to his findings, for a little over 13 months.

36. On any view, there had been in this case an extensive period of non-enrolment and therefore a significant and ongoing breach of condition 8202.

37. As indicated earlier, her enrolments in the Hospitality package have led to nothing in the way of productive study. Further, the cancellations of these enrolments took place about 8 months ago and nothing has since been done to rectify her enrolment status.

38. Student visas are invariably granted on condition that the applicant will, unless exempted, maintain enrolment in a registered course of study. Condition 8202 is fundamental. They are not granted to enable students to work instead. In this case the evidence suggests that the applicant has engaged in remunerative work from time to time since she arrived here. It may be that she has complied with the work restrictions imposed on her visas but there is no suggestion that her medical condition has in any way interfered with her work. She told me today that she had been working from time to time as a picker on a farm for an average of 20 hours per week. She had also been working prior to that as an assistant in a hair-dressing salon, apparently.

39. Her evidence on this is anecdotal, very vague and rather unsatisfactory but she does appear to have worked for periods of time since arriving here without any apparent difficulty, let alone distress, and has been paid for it. 

40. The extent of non-compliance with condition 8202 can only be described in this case as extensive, and on the evidence, largely if not completely unexplained. 

41. Given that she is not currently enrolled in a registered course of study, and has not been for some considerable time, I cannot see any evidence of hardship at all. She is currently living with her sister in Adelaide, as far as I can tell, and has been wholly or partly supported by her. There may be some disappointed expectations but, quite frankly, I do not know why. In this case, whilst I cannot entirely discount the possibility of hardship, I do not give it any real weight against cancellation given that the applicant is not currently enrolled in a registered course of study and has given no evidence to the effect that she really wants to study.

42. As to the circumstances in which the ground for cancellation arose, I think I have already dealt with these. The fact that the applicant was in breach of condition 8202 at the time of the delegate’s decision is not in dispute. She did not respond to the NOICC, let alone assert there were any extenuating circumstances which led to the cancellation. Given her evidence today, I would have expected her to have at least informed the delegate that she had been suffering from headaches but, for some unexplained reason, she did not do so.

43. As to her present and past behaviour towards the Department, there does not appear to be anything before me particularly adverse to the applicant, so I give this a little weight against cancellation.

44. There appear to be no Sec 140 considerations in play here.

45. I am mindful of the legal consequences stemming from a decision to cancel her visa but these are provided for in the Act and ordinarily are not weighty matters absent evidence to suggest that an applicant will in some way be compromised because of them.

46. As to PIC 4013, it seems to me that, in this case, the applicant can only be regarded as the author of her own harm.

47. There do not appear to be any relevant international obligations.

    Summary and conclusions

48. A striking feature of this case is that the applicant has not put forward any credible evidence to satisfactorily explain why she has not been engaged in productive studies for at least 3 years. Nor has she given to me any evidence regarding her future intentions including but not limited to whether she intends to enrol in a registered course and engage in productive study if given the opportunity.

49. As I have said in many other Student cases, it is not the Tribunal’s function to conduct a roving inquiry in an endeavour to find out whether a visa should or should not be cancelled. I have at the hearing investigated certain aspects of the applicant’s review case within the time allocated but the time constraints do not enable me to go up every nook and cranny and, in that way, fill in the evidentiary gaps. I do not consider that a self-represented applicant before the Tribunal should be treated any differently in this respect to an applicant who has representation.

50. At the end of the day an applicant must accept forensic responsibility for the way a case is presented and, in this case, it is obviously deficient in material respects.

51. On any reading of the evidence led, this case involves extensive and unexplained periods of non-enrolment and a gross failure on the applicant’s part to engage in productive studies in disparate vocational courses which, on the evidence, appear to lead no-where. Absent a satisfactory explanation, the inference I draw is that the applicant had other priorities most probably related to her paid work activities.

52. The circumstances in which the ground for cancellation arose do not assist the applicant’s case, and indeed nothing she has done since the delegate made his decision can be regarded as having reinforced it.

53. Attributing weight to the relevant circumstances at the discretionary level, I am well satisfied that the reasons for cancelling the visa in this case clearly outweigh the reasons for not cancelling it.

54. I thus conclude that the applicant’s visa should be cancelled. 

    DECISION

55. The Tribunal accordingly affirms the decision under review.

    Michael Bradford
    Member