Thapa (Migration)

[2021] AATA 1073

Thapa (Migration) [2021] AATA 1073 (12 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Sundar Thapa
Mrs Sabina Thapa

CASE NUMBER:  1935757

HOME AFFAIRS REFERENCE(S):          BCC2019/3388725

MEMBER:Meredith Jackson

DATE:12 March 2021

PLACE OF DECISION:  Brisbane

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 applicant.

Statement made on 12 March 2021 at 10:30am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment at lower AQF level than visa condition – enrolment at higher level cancelled because of non-payment of fees – discretion to cancel visa – advised by agent that he could enrol at lower level – intention to complete lower-level course – offer of enrolment at original level – potential hardship if visa cancelled – newborn baby – second applicant’s work and intention to study – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348, 359AA
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision dated 17 December 2019 made by a delegate of the Minister for Home Affairs to cancel the first named 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, contrary to the requirements of condition 8202(2)(b) of the visa, the applicant had not maintained enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework (AQF) 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 on the basis that the grounds for cancellation outweigh the reasons not to cancel the visa.

3.    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 visa was 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 applicant.

5.    The applicant appeared before the Tribunal on 11 March 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s spouse, the secondary applicant Sabina Thapa, in support of the applicant’s case. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages however the applicant and witness chose to address the Tribunal in English and did not at any time seek the aid of the interpreter.

6.    The applicants were represented in relation to the review by their registered migration agent, who did not attend the hearing.

7.    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

8. 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.

Case summary

9.    The applicant is Sundar Thapa, a 34 year old citizen of Nepal. In September 2008 he arrived in Australia as a student in the vocational sector. He has since held five student visas and a graduate visa. The visa under review is a subclass 500 student visa, granted in May 2018 for the applicant to study Master of Business Administration (MBA), which is a level 9 course of the Australian Qualifications Framework. On 5 June 2018, this MBA enrolment was cancelled because the applicant had not paid fees. The applicant re-enrolled in different MBA and began studying but that course was cancelled in May 2019 for the same reason. At the time of the delegate’s decision, the applicant was enrolled in a package of courses leading to a Diploma of Leadership and Management, which is a vocational course at level 5 of the AQF. This led to the cancellation. The applicant does not dispute that he breached a visa condition. He claims he has tried to enrol a level 9 again and on 4 March 2021, he secured an offer of enrolment in a Master’s degree. He claims the visa cancellation will have a devastating effect on his and his family’s mental and emotional well-being.

Documents and oral evidence provided to the Tribunal

1. The applicant provided documents relevant to his case which included but are not exclusive to: the delegate’s decision; identity documents for him and his wife Sabina Thapa; a statement about his personal circumstances; academic documents and transcripts, including a statement of attainment in a Diploma of Leadership and Management from Royal Gurkhas Institute of Technology Australia (RGIT); a Bachelor of Business (Professional Accounting) attained at Elite Education Institute; an Advanced Diploma of Accounting from Clarendon Business College; an Advanced Diploma of Management from International Institute of Business and Information Technology; Certificates II, III and IV in Business from (ibid); and an Offer Letter from Wentworth Institute for a package of courses comprising a Graduate Certificate in Professional Accounting and a Master of Professional Accounting starting on1 March 2021 and concluding on 11 November 2022. The Tribunal has taken this the documentary evidence into account and has also had the benefit of the applicant’s oral evidence and the information in Tribunal and Department files, including, as described below, his PRISMS record.

Did the applicant comply with Condition 8202?

1. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, in this case, the condition states in part that:

   (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 […]

(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 […]

Applicant accepts breach of condition 8202

1. The applicant does not dispute that in failing to maintain enrolment in an AQF Level 9 course he breached condition 8202. On March 4, 2021, in a written submission to the Tribunal, he stated that “I know that I breached the visa condition which is a serious issue…”; and “the current breach of my visa condition is a genuine mistake on my part”. At the hearing, the applicant confirmed his acceptance of the breach. He does not claim to satisfy condition 8202 on any other basis.

Section 359AA

1. In order to confirm the sequence of enrolments involved and to identify any issues that may arise from information in the Provider Registration and International Student Management System (PRISMS), before the hearing the Tribunal sent the applicant a copy of his record in the database. In the hearing, adopting the procedure in s.359AA of the Act, the Tribunal referred the applicant to the information about him held in PRISMS, and explained its relevance to his case. The Tribunal stated that the information might be the reason, or part of the reason to affirm the delegate’s decision. The Tribunal outlined the information in the database, which is a chronological record of the applicant’s academic history in Australia: information about his enrolments, commencements, cancellations and course finish dates. The Tribunal said it had not made up its mind about the information. The Tribunal gave the applicant time to study the record. The Tribunal asked if he wished to seek further time to consider it. The applicant stated that he had studied the record, understood it and its relevance, and would comment on the information immediately.

2. The applicant stated that his PRISMS record was correct.

3. The applicant acknowledged that he had breached a visa condition by not maintaining enrolment as required at AQF level 9. He stated that he is not currently enrolled in any course in Australia because of the conditions of his Bridging visa. He stated that he has been provided with an offer of enrolment for a package of courses leading to a level 9 Master of Public Accounting however, he has been unable to convert that offer to enrolment, because he is not permitted to study.

4. The Tribunal has taken into account the applicant’s responses to the PRISMS record and considered his written and oral statements and all other evidence before it regarding his enrolment record. The Tribunal concludes that the visa holder did not comply with subclause (2)(b) of condition 8202 because he did not maintain enrolment, beyond 10 May 2019, in a registered course that, once completed, would have provided a qualification from the Australian Qualifications Framework at the same level or higher that the registered course in relation to which the visa was granted. The applicant’s current offer of enrolment is not relevant because it is not evidence of enrolment for the purposes of a subclass 500 student visa and further, it is not capable of mitigating a breach. On the evidence before the Tribunal, the applicant was not enrolled as required beyond 10 May 2019 and accordingly, the Tribunal is satisfied the applicant has not complied with condition 8202(2)(b).

Consideration of the discretion to cancel the visa

1. 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 all 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 purpose of the visa holder’s travel and stay in Australia

1. The applicant was granted his Subclass 500 visa for the purpose of studying a Masters degree in Australia. He is currently holding a Bridging (BVE) visa. The Tribunal has no evidence before it that the purpose of the applicant’s travel and stay in Australia was for anything other than study. The Tribunal affords this consideration some weight in favour of the applicant.

Circumstances in which the ground for cancellation arose

1. In the hearing, the Tribunal discussed with the applicant the circumstances in which the ground for cancellation arose. The Tribunal raised various statements made in written submissions and in his response to the department regarding the Notice of Intention to Consider Cancellation (NOICC) sent to him on 20 November 2019 in which he acknowledged the breach.  The applicant stated that his difficulties arose in early stages of the first MBA when he paid his fees a day late and then struggled in his next attempt. The enrolments followed a period on a Temporary Graduate (subclass 485) visa. When that expired, he wanted to study “higher and higher” but found the going difficult. He had begun studying after the late payment the college insisted he enrol in a new course. He paid $5,700 in fees but was not studying well. He took advice from friends, who told him that “everybody was moving to Tasmania” to study a Leadership and Management diploma, and he and his wife decided to make the move. He checked with his migration agent who told him, he claims, that as his visa remained current, he could go ahead and study the diploma course. He said it was party a financial decision to choose a Diploma of Leadership of Management. He stated he did not realise he might have breached a visa condition until he got the NOICC. After the cancellation, he was unable to do the final three units of the diploma, a consequence he claims remains very distressing for him. He had come to Australia for education; for no other purpose but to do higher education; and later on he started to love the country wanted to keep studying. He was going back to Nepal at that time, back and forth. HIs wife came to Australia in 2012, it was she who urged him to do the MBA after his graduate visa expired in April 2018. He had thought they would go back to Nepal after his graduate visa, but his wife wanted to stay longer, plus she wanted to study and get international qualifications herself. The Tribunal having considered the circumstances, affords them light weight in his favour.

Extent of compliance with visa conditions.

1. The applicant claims he had always abided by his visa conditions. The Tribunal has no evidence before it that while he held the visa, until such time as he failed to maintain enrolment as described above, the applicant used the visa for purposes other than the basis on which it was granted. There is no evidence before the Tribunal that he may have breached other visa conditions while holding the visa or any previous visa. The Tribunal affords this light weight in his favour.

The degree of hardship that may be caused by cancellation of the visa

1. The applicant claimed in written and oral evidence that if the visa is cancelled, he and his family will be devastated. He and his wife have a 17 day-old baby, their first child, and he is hoping to give her the best possible life and to raise her in Australia. If the visa is cancelled, and they have to go back to Nepal, he will be deeply disappointed and she will have a far poorer life in a developing country. He stated that this is not a good time to go to Nepal, it is politically unstable and it is hard to start a new business; they would like to wait until politics in the country settle. Preferably until his daughter grows up. At this stage however he only wants to complete his diploma course, because he has done 90 per cent of it, and has three units to go. It would add to his Bachelor degree and give him skills to run a business.

2. The applicant stated that his parents will also be affected: they sent him here to get education, but he knows he stayed a bit long. He went for higher and higher study, but when he moved to Tasmania, his decision to switch to vocational level made things worse and worse. His parents will not understand a cancellation, and he has not yet told them.

3. The applicant’s spouse, Sabina Thapa, told the Tribunal that the family is struggling. They were planning to have children but then her father passed away. She could not travel because of COVID and her recent pregnancy, was not planned. So they just thought they would wait for the hearing and hope for the best. She has been working in a nursing home and is very interested in nursing; her employers want her to study. Her husband and she did not realise they were breaching visa conditions. It was not their intention; they followed advice.

4. The Tribunal has considered the degree of hardship that the applicant may face if the visa is cancelled. The applicant presented at the hearing as a forthright and decent person and witness, who was willing to stand by his family, and to make amends to Australia for a lapse in judgment in downgrading his education pathway. He indicates that if this outcome is not realised, then he be allowed to complete his diploma, which has three subjects to run. The Tribunal notes his request, but also takes into account that the applicant has an offer of enrolment for a Graduate Certificate and an MBA, a level of intended study which tends to cast doubt on his claim that he only wants to complete what he has commenced.

5. The Tribunal accepts the applicant’s claims that his family will be disadvantaged if they return to Nepal. His child is only days old; his wife wants to study; he does not have confidence that his home country will provide a good enough life for them. There are incentives to stay: the Tribunal notes his spouse, as a witness, states that she wants to study nursing and has the support of her employer. The Tribunal accepts that the applicant made a genuine error in studying below level; and aside from the family’s own disappointment, his parents in Nepal will be dismayed by the cancellation. However it became clear to the Tribunal through this review that the family’s ambition is to remain in Australia, a country the applicant stated he has grown to love. They are used to living in Australia. The applicant has spent most of his time here since 2008; his wife since 2012. The applicant said in the hearing he would like to stay until his daughter grows up. This is an understandable ambition, but it is not consistent with the student visa program. The program requires that students who are granted a visa to study at level must remain at that level, pursuing a course at a level for which they sought the visa, then return to their home country. The Tribunal considers the circumstances as presented to the Tribunal are not sufficient to fully mitigate the accepted breach. The Tribunal, having carefully considered all aspects of this consideration, weighs the evidence against the applicant.

Applicant’s past and present behaviour of the visa holder towards the department

1. The applicant responded to the NOICC five days after it was sent to him by the department. There is not evidence before the Tribunal that the applicant has been other than cooperative with the department and Tribunal. The Tribunal affords this some weight in his favour.

Whether there would be consequential cancellations under s.140

1. The Tribunal notes that the visa of his spouse Sabina Thapa will be consequentially cancelled pursuant to s.140 of the Act if his visa is cancelled. The visas of Ms Thapa was granted on the basis of her being a member of the family unit of the applicant and it is the intended consequence of the legislation that members of the same family have the same visa status. This is further addressed to in paragraph [4] of these reasons.

Whether there are mandatory legal consequences

1. The applicant has not raised the issue of legal consequences arising from the cancellation. However the Tribunal has considered the likely impacts of legal consequences in the case. The Tribunal accepts that if the applicant is forced to leave Australia, he will be prohibited from applying for most visas while he is onshore and, in those circumstances, will be barred for applying for Australian temporary visas for three years from the date of the cancellation. Further, he may be subject to detention if he does not engage with the department after visa cancellation and voluntarily depart Australia.

2. In the absence of the applicant making another successful visa application, or the Minister granting a visa, ultimately, he will not have authority to remain in Australia. If so, the applicant will have the opportunity to depart Australia. Whilst his continued failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision. Section 48 of the Act prescribes that a non-citizen who does not hold a substantive visa, and (relevantly) held a visa which was cancelled under s. 116 of the Act, may apply for certain prescribed classes of visas but not others. Regulation 2.12 prescribes the classes of visas, which does not include student visas. Consequently, this limits the visa applications the applicant can make whilst onshore.

Whether any of Australia’s international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached

1. In considering whether to exercise its discretion to cancel the applicant’s visa, policy guidelines suggest that the Tribunal should assess whether Australia would be in breach of its international obligations. These include the obligation in relation to non-refoulement pursuant to the Refugees Convention and the Refugees Protocol, Australia’s responsibilities regarding the rights of any children pursuant to Article 3 of the Convention on the Rights of the Child (CRC), and the International Covenant on Civil and Political Rights (ICCPR). No information is before the Tribunal that a cancellation outcome would breach of any of Australia’s international obligations and the Tribunal affords this consideration no weight.

Conclusion

1. The Tribunal has carefully considered all the applicant’s claims and evidence and weighed its considerations in the case accordingly. The Tribunal does not consider the combined weight of the individual elements that it weighs in the applicant’s favour, or any of those elements alone, to be sufficient to justify setting aside the delegate’s decision. Therefore, having regard to all the evidence before it, and balancing the matters in favour of setting aside the delegate’s decision and affirming it, the Tribunal concludes that the correct and preferable exercise of its discretion favours affirming the delegate’s decision to cancel the applicant’s student visa.

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

DECISION

1. 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 applicant.

Meredith Jackson
Member

ATTACHMENT

Migration Regulations 1994

…

Schedule 8

1. (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.