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Evidentiary Problems Lead to Loss of Student Visa

Is there any way to avoid the cancellation of a student visa when the visa holder breaches a condition of the visa that requires him to be enrolled in a registered course throughout the duration of the visa?

This was the dilemma that confronted the visa holder in the case of Karki v Minister for Immigration and Border Protection & Anor, (2015) FCCA 1940 (20 July 2015). Unfortunately for the visa holder, the breach of the condition led the Department to cancel his student visa in the first instance, and that cancellation was affirmed both by the Migration Review Tribunal (as it was then known) and by the Federal Circuit Court.

However, the decision does highlight some possible “escape routes” that might be relied on by the holders of student visas to preserve their visas against cancellation and thus to maintain their entitlement to remain in Australia to continue with their studies. 

The background of the case was that the visa holder was a student from Nepal who had been enrolled in a bachelor’s degree program in accounting. He had originally been granted a student visa and had begun his studies in July 2011. However, he was unable to pay his course fees for the second semester of 2012. The visa holder claimed that he could not afford to pay the fees because his mother had become ill, and his family needed the money to pay for her medical treatment.  Although the education provider allowed him to commence his studies for the second semester of 2012 on the condition that he pay the fees by June 2012, when he did not do so his enrolment was cancelled. 

Consequentially, the MRT found that the need to pay for the mother’s medical treatment arose in December 2012, a time 6 months after the course fees were required to be paid.

About a year after the student’s enrolment in the course was cancelled, in July 2013, the Department issued a Notice of Intention to Consider Cancellation of his student visa.  After providing the student with the opportunity to respond to the Notice of intended cancellation, the Department concluded that the visa holder’s breach of the condition that required him to remain enrolled in a registered course was not due to “exceptional circumstances beyond his control”. Therefore the Department proceeded to cancel the student visa. 

In the Federal Circuit Court, the visa holder challenged a decision of the MRT affirming the cancellation of his student visa on the basis that it was “plainly unjust” in the circumstances. It was his claim that the MRT should have considered “inferences”, based on the fact that family funds had been needed to pay for the medical treatment for the student’s mother in December 2012, that funds were also required to pay for her medical treatment 6 months earlier, in June 2012.  However, the Federal Circuit Court concluded that, in the absence of evidence concerning actual medical expenses in June 2012, the MRT was not required to make inferences that those expenses existed at that time. 

The Court also concluded that the MRT was entitled to determine that the visa holder’s failure to remain enrolled in the course due to lack of funds was not a circumstance that was “beyond his control”, on the basis that it was his responsibility, “as an overseas, full-fee paying student” “to ensure possession of necessary funds”. 

The other factors that the Federal Circuit Court found to be significant reasons to uphold the MRT’s decision affirming the cancellation of the student visa included the visa holder’s failure to take steps, such as seeking deferment of his studies, or contacting the Department to discuss his options for keeping his student visa in place.

It also apparently did not help the visa holder’s cause that he did not re-enroll in a course for nearly a year, from June 2012 when the education provider cancelled his enrollment due to non-payment of fees, until August 2013.

Furthermore, the Court apparently found that it was reasonable for the MRT to reject the visa holder’s claims that his mental health had been adversely affected by his mother’s illness because he had failed to produce independent supporting evidence from a doctor or a psychologist concerning such problems. 

Reading “between the lines” of this decision, it appears that the visa holder might have had a case that the medical issues facing his family and his own mental health problems really did lie at the root of his failure to remain enrolled in a registered course. However, the difficulty was that he did not produce evidence to the MRT to prove these matters.

Rather than providing evidence that his family actually was unable to provide him with money to pay his tuition in June 2012, he instead sought to get the MRT to accept an “inference” that because the family could not provide the funds in December 2012, it must also have necessarily followed that it could not have provided the funds 6 months earlier. 

Furthermore, rather than relying on a bare, unsupported assertion that his mother’s illness had caused him to suffer “mental health problems” which contributed to his failure to remain enrolled in the course, the visa holder would have been much better served to come up with actual documentary evidence from medical professionals to prove this claim.

The situation that the student visa holder found himself in this case – where the money that is needed to pay course fees unexpectedly becomes unavailable due to an illness or other financial emergency in the family – is probably not at all unusual.  

It does appear, again “reading between the lines” of this court decision, that if the student had approached his education provider and had sought a temporary deferment of his studies, or if he had contacted the Department and openly and frankly discussed his situation and sought the Department’s guidance about steps he could take, that he might have been able to avoid the cancellation of his visa.

Thus, this decision provides both a “cautionary tale”, and a “road map”, for other students who may find themselves in such a difficult position.

b2ap3_thumbnail_Concordia_20150730-034113_1.jpgConcordia Pacific Migration Lawyers, Email: This email address is being protected from spambots. You need JavaScript enabled to view it. , Tel: (02) 8068 8837

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