ACHARYA (Migration)

[2019] AATA 3437

ACHARYA (Migration) [2019] AATA 3437 (27 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr ABIRAL ACHARYA

CASE NUMBER:  1701696

HOME AFFAIRS REFERENCE(S):          BCC2017/129445

MEMBER:David McCulloch

DATE:27 March 2019

PLACE OF DECISION:  Sydney

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

Statement made on 27 March 2019 at 11:52am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – ceased to be enrolled – unsatisfactory course progress – breach of work restrictions – extenuating circumstances – lack of study history following cancellation – currently enrolled in a registered course – does not suggest an ongoing commitment to study – decision under review affirmed

LEGISLATION

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 31 January 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).

2. The applicant is a national of Nepal born on 25 December 1994. The visa that has been cancelled was granted on 10 September 2014 for a stay period until 30 August 2018. That visa was subject to condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations).

3. On 17 January 2017 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) because the delegate considered that the applicant did not comply with condition 8202 of his visa, as he ceased to be enrolled in a registered course from 11 May 2016. The applicant provided a written response to the NOICC. On 31 January 2017, the delegate decided to cancel the visa held by the applicant on the basis that the applicant breached condition 8202 of his visa. The applicant seeks review of the delegate’s decision.

4. The delegate cancelled the visa on the basis that the applicant had breached condition 8202 in relation to the requirement to be enrolled in a registered course. The issue in the present case is whether the ground for cancellation is made out and, if so, whether the visa should be cancelled.

5. The applicant appeared before the Tribunal on 20 March 2019 to give evidence and present arguments. The applicant communicated with the Tribunal in English.

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 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?

8. 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).

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

10. The applicant provided a copy of the delegate’s decision to the Tribunal which indicates that he has not been enrolled in a registered course of study since 11 May 2016.

11. In the hearing the applicant acknowledged he ceased to be enrolled in a registered course.

12. There is nothing before the Tribunal to suggest that the applicant was a holder of a Subclass 560 or 571 (School Sector) visa as a secondary exchange student, thus the applicant’s obligation under condition 8202(2) is to be enrolled in a registered course.

13. 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

14. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

15. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3). These matters include: the purpose of the visa holder's travel to and stay in Australia; compelling reasons to remain in Australia; the extent of compliance with visa conditions; the degree of hardship that may be caused to the visa holder and any family members; the circumstances in which the ground for cancellation arose – whether there are extenuating circumstances beyond the visa holder’s control; the visa holder's past and present behaviour towards the Department; whether there are any persons in Australia whose visas would or may be cancelled under s.140 (i.e. consequential cancellation); whether there are mandatory legal consequences to the decision (whether indefinite detention is a possible consequence in light of any non-refoulement obligations; provisions in the Act which prevent the person making a valid application without the intervention of the Minister; whether the person would become an unlawful non-citizen and liable to be detained upon cancellation); whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation; the impact on children of the cancellation; whether the cancellation would lead to removal in breach of Australia's non-refoulement obligations; and any other relevant matters.

16. The applicant provided the following response to the NOICC in an email dated 24 January 2017 (not corrected for spelling or grammar):

    I am writing this letter to you in regards to the notice about cancellation of my student visa (Subclass 573). I first arrived in Australia on September 2014 to study Certificate IV in programming followed by Diploma of Software Development in Canterbury Business College then to Bachelors of Information Technology in University of Southern Queensland. I have been living and studying in Australia for almost 28 months now. But my living and studying period in Australia hasn't been as well as it could have been and I have been going through some difficult period over the time where I have had to compromise studies in order to sustain my living here.

    Financially I was stable enough for a period of time and my family had been supporting me as well but my problems mainly started after April 2015 largely due to the earthquake that occurred back in my country, Nepal. I come from a very rural area of Nepal from a place called Tupche, Nuwakot. The earthquake that occurred had a devastating consequences on me and my family as my family suffered the loss of land and properties. The effect of earthquake were so serious that my family had to struggle for basic needs so it was a critical condition and I had to give all the support and help I could give them. I had enrolled up to May 2016 but due to my situation back home, I couldn't give ample time to my studies as my family was my prime priority and I had to support them to get back in feet again. So due to my critical financial condition, I wasn't able to continue studies and had to do my best to get everything back-to normal.

    But over the period of time I have gradually been able to get everything together and since my family is slowly getting back too. So I have again decided to prioritise my studies. Over last 3 months I have been trying to get an offer letter from various universities to continue my degree in Bachelors in Information Technology. Unfortunately, it was too late to get enrolled in any Universities for November 16 Semester, so now I am trying for the next Semester which is on March 2017.

    Having been through all these difficulties and having to face cancellation of visa now, it will be very unfair to me and my family as I came to Australia to achieve a degree so that I could go back to my country and help my family and my country with the knowledge I acquire. So I hope you would consider my request as I am very much keen to pursue my Bachelor's degree and I strongly feel Australia is the right place and platform to complete my degree. I hope my situations and intention will be taken under consideration before any decision is made.

17. The applicant provided to the Tribunal the following additional written statement dated 18 March 2019 (not corrected for spelling or grammar):

    I am Abiral Acharya. I come from a rural part of my country and middle class family. I came to Sydney, Australia on September, 2014. I was first enrolled in Canterbury Business College for Certificate IV in Programming. I started my work on a casual role on a Commercial Relocation Company named Goals A+N. I was at the age of 19 when I first entered this county and I had very little idea about the cultural and daily aspects of Australian life. The first few months were very tough as I did not have any friends or relatives around here and i didn't have good job either.

    As time went on I started settling slowly and steadily and I was getting more hours on the job as I was working hard but my studies weren't up to the standard as I really had tough going on it. For first 6 or 7 months I had been able to adjust financially through casual job and support from back home but in April 2015, because of the devastating Earthquake that occurred in my Home country Nepal, with over 9000 casualties and over 60000 structures damaged, my family was severely affected by it too. We had structural damages to our property and land and even affected a small business my parents had been running. The consequences of that weren't just back there but i started to struggle keeping up with the daily expenses here with just having one casual job. Because of which I had wasn't able to continue my studies having that financial and mental pressure. The effect of that incident dented my hopes of continuing my studies.

    Over the period of time, things started getting better and I was given a supervisor role in the company I worked in and I was even verbally assured to be Sponsored for 457 Visa at that time. I am not able to provide any written proof of the assurance but I was told if I kept up my good work, I would be sponsored for 457 visa. Also the company had already sponsored few key staffs in the past for their good work in the business. At that time due to the earthquake my family still wasn't able to support me for my studies financially and rather I had to support them through my earnings back home, so maintaining performance on my work became my priority so I had to sacrifice my studies for it. I used to work many hours a week in average on the company but having sacrificed my two years and worked tirelessly, I was fired from the company on Oct 2016. At that moment, I had made all my priorities to do well in the job and get sponsored through the 457 Visa systems. Little did I know I would suddenly be sacked one day and my two years would completely go to waste.

    On the part of my studies, I was still trying to complete Certificate IV in programming which I did manage to complete on Feb 2017 but because I wasn't enrolled for almost a year in any Institutions, My visa was cancelled. Since my visa was cancelled and I had applied for a review with AAT and the general processing time of the Decision review was about 7-8 months at that time, I didn't have any options on studies. But Since I was struggling with Programming on CBC, I had figured out a new area of interest for my studies along the period of the time and I had my interests to purse to studies for Bachelors of Technology (Motorsports) at Edith Cowan University and I even had an enquiry email sent on Dec of 2015 to get more idea and guidance on how I could get enrolled on to that course and what requirements I needed to fulfill. Having figured out what I wanted to study by that time, I was helpless because I had no certainty of my Visa and my only options were to wait for the decision from AAT. But almost 24 months went by and there were no signs of decisions review date. For the last 24 months, I have been working as Domestic Household removals and have been waiting for my Decision Review date. Once I got the notice of my hearing date, last month, I had submitted my application to study in Edith Cowan University but I haven't heard back from them yet so I have rather been enrolled to studying Diploma of IT in Pacific College of Technology. I plan to complete my Diploma of IT on Pacific College and Apply again at Edith Cowan University for the course I desire to study and pursue my career in Technology (Motorsports).

    After all the ups and downs I have faced at my time in Australia, i am more mature now and more importantly I have figured out where I need to focus my studies and career on. So it is very important for me to have my Student Visa Reinstated and having learnt from my past mistakes, I have only one area to focus on and that is my studies and career and having my Student visa back and be able to continue my studies in Technology will do a world of good for me, my future and my hard working parents who have struggled so hard throughout their life.

    I had no goals whatsoever in the past, but now I know exactly what I am going to do in my future. Just because of the fact that the qualification is acknowledged in Australia the world over, I am ready for this.

18. The applicant also provided to the Tribunal:

    ·Statement of Attainment dated 6 February 2017 from Canterbury Business College for the applicant in a Certificate IV in Programming.

    ·A letter from the applicant’s mother dated 17 March 2019 indicating that the applicant had always been good at his studies but that the family had to stop financial support in 2015 due to the earthquake. This impacted the applicant so badly that he discontinued his study.

    ·Confirmation of Enrolment created on 12 March 2019 in a Diploma of Information Technology Networking due to commence on 11 March 2019.

    ·An email to the applicant dated 30 December 2015 from Edith Cowin University concerning an enquiry from the applicant in relation to the Bachelor of Technology (Motorsports)

    ·An email dated 18 March 2019 from Edith Cowan University advising that the applicant has not satisfied the University’s Genuine Temporary Entrant criteria.

19. The central issue for the Tribunal are claims that the earthquake in Nepal constituted extenuating circumstances beyond his control to cause his family to be unable to financially support the applicant’s studies in Australia.

20. This needs to be considered in the context of the applicant’s study and other circumstances in Australia following the earthquake up until the cancellation of the visa. The applicant’s lack of study history following cancellation of the visa is also relevant to the applicant’s claims and the Tribunal’s discretion.  These issues were explored in the Tribunal hearing.

21. In the hearing, the Tribunal discussed with the applicant his study history in Australia. As put to the applicant, information from Government records indicates he studied and finished a Certificate IV in Programming commencing on 13 October 2014 and finishing on 11 October 2015. The applicant indicated in the hearing that this is when he completed this course. The Statement of Attainment that he obtained in relation to this course is dated 6 February 2017 because this was when he sought the Certificate.

22. The Tribunal noted to the applicant in the hearing that Government records indicate that he commenced a Diploma of Business on 12 October 2015 which he finished on 27 March 2016. The applicant has provided the Confirmation of Enrolment in this course which was created on 7 October 2015. That Confirmation indicates that the applicant had paid almost $1,700 in prepaid fees for the course. The applicant agreed that he had prepaid these fees.

23. The Tribunal noted to the applicant that Government records indicate that this course was finished (which just means that the course was completed not necessarily passed).  The Tribunal noted that records did not suggest that the enrolment was cancelled due to non-payment of fees or for any other reason which would tend to suggest that the total tuition fees of $3,750 had been paid. In response, the applicant indicated that he could not recall whether all of the fees for this course had been paid.

24. The Tribunal explored with the applicant his progress in this course. In response, the applicant indicated that he went to no classes in this course whatsoever and undertook no study. The applicant indicated that he had been advised to enrol in this course by a former principal but that he was not interested in studying business.

25. The Tribunal expressed surprise and scepticism that the applicant would have enrolled in this course on 7 October 2015 which was due to commence several days later on 12 October 2015 and paid $1,700 in prepayment but have undertaken no study or attendance at all in relation to this course. The applicant did not adequately explain this fact.

26. The applicant’s second written statement indicates that he prioritised his work obligations above his study commitments. In the hearing, the applicant indicated that he was forced to do this in order to support himself.  He indicated that he exceeded the 20 hours per week limitation on his student visa.

27. Whilst the Tribunal might accept that the applicant felt that he needed to work longer than 20 hours to earn more money, the applicant was in Australia on a student visa which was issued for the purpose of study. If the applicant was not studying and needed to work longer than the limits placed on his student visa that does not excuse the breach of this visa condition. The applicant should have returned to Nepal rather than breaching obligations on his student visa, particularly if he was not studying, which was his reason for being here.

28. The Tribunal noted to the applicant that this breach of work restrictions on the visa would be an adverse discretionary factor for the Tribunal in the exercise of its discretion.

29. At around the time of the consideration of cancellation of the visa by the Department in January 2017 the applicant enrolled in an Advanced Diploma of Business which was due to commence on 30 January 2017. Government records indicate that this enrolment was cancelled on 8 December 2017 for unsatisfactory course progress. The applicant indicated that he simply enrolled in this course because it was suggested that he do so by his migration agent for the benefit of the Department in considering whether the applicant’s visa should be cancelled. The applicant indicated that he undertook no study whatsoever in relation to this course.

30. On the basis that the applicant did not actually study this course, and given that the applicant did not study at all the Diploma of Business and Government records indicate no following enrolment by the applicant in a registered course until 12 March 2019, this all indicates that the applicant has undertaken no study in Australia since finishing his Certificate IV in Programming on 11 October 2015 until 12 March 2019 (in the same month as the Tribunal hearing).  On this day the applicant enrolled in a Diploma of Information Technology Networking due to commence on 11 March 2019.

31. The applicant’s written response to the NOICC indicates that, at that point in time (January 2017), he was in a position to enrol and study in Australia. The applicant indicated in the hearing that his migration agent (sensibly) gave the applicant advice when the cancellation of his visa was being considered by the Department that it would be good to demonstrate that the applicant was enrolled. 

1. The Tribunal indicated to the applicant in the hearing that, given the applicant claims that he needs reinstatement of the visa in order to be able to study in Australia, it might have been expected that he would have enrolled in a registered course and studied at the point when he had the ability to do so (at least from January 2017). In response, the applicant indicated that he did not want to commit to study given the lack of certainty about the fate of his student visa.

2. The Tribunal would ordinarily provide some degree of latitude to the applicant in breaching visa conditions as a result of claimed financial hurdles to study in light of the earthquake in Nepal.

3. However, the Tribunal is not satisfied that the financial difficulties suffered by the applicant as a result of the earthquake in Nepal were as grave as he has indicated. Firstly, they did not prevent the applicant from continuing and completing his Certificate IV in Programming in October 2015.

4. Further, it does not appear that the applicant felt overly financially constrained when he enrolled in the Diploma of Business on 7 October 2015 prepaying almost $1,700 in fees yet deciding not to undertake any study at all in this course for reasons that the applicant has not adequately explained to the Tribunal.

5. The Tribunal is not satisfied that financial difficulties caused by the April 2015 earthquake were the key reasons for the applicant not being enrolled in a registered course from 11 May 2016 until the visa was cancelled on 31 January 2017.

6. Further, it is significantly adverse to the applicant that the applicant has not actually engaged in any study after completing his Certificate IV in Programming in October 2015, in the period both before and after the visa was cancelled, until 12 March 2019. It is adverse to the applicant that he has undertaken no study in Australia for approximately three and a half years, including from January 2017 when the applicant told the Department that he was able to enrol and study.

7. The Tribunal considers that any uncertainty the applicant may have held as to the fate of his student visa in terms of enrolment and study would be outweighed by a combination of the importance to him of studying in Australia and being able to demonstrate to the Department and the Tribunal that the applicant was acting as a genuine student over time.

8. The Tribunal also notes that the applicant had held a Subclass 573 student visa which required him to be enrolled in a higher education sector course pursuant to condition 8516. That means that the applicant has also breached condition 8516 from the cancellation of his Bachelor of Information Technology on 11 May 2016 until the cancellation of the visa on 31 January 2017. The applicant agreed in the hearing that he had breached his visa obligation also. The breach of this visa condition is adverse to the applicant together with the fact that the applicant breached visa conditions relating to his hours of work on the student visa.

9. As noted to the applicant in the hearing, since arriving in Australia in September 2014 on a higher education sector visa the applicant has not undertaken any study at the higher education level at all in the more than four years since. This is adverse to the applicant in the exercise of the Tribunal’s discretion.

10. The Tribunal acknowledges that the applicant is currently enrolled in a registered course but this has only occurred recently, in the immediate lead up to the Tribunal hearing. This does not suggest an ongoing commitment to study given the applicant’s study history while in Australia.

11. In the hearing, the applicant indicated that the hardship to him if the visa remains cancelled and his compelling need to remain in Australia is the importance of him obtaining educational qualifications in Australia. The applicant also indicated that his family in Nepal are from a rural area and have worked hard to facilitate the applicant’s studies in Australia and that if he goes back to Nepal without qualifications this will be a hardship to his family.

12. The Tribunal does not consider that the history of the applicant’s study in Australia following the completion of his Certificate IV in Programming in October 2015 demonstrates an individual who has been committed to obtaining educational qualifications in Australia. The Tribunal acknowledges that the applicant’s lack of study progress in Australia may be disappointing for his family in Nepal.

13. The Tribunal acknowledges that a hardship to the applicant exists if the visa remains cancelled, being his inability to apply for other visas onshore. The Tribunal acknowledges that if the visa remains cancelled he will be an unlawful non-citizen, however the Tribunal considers that the applicant will remain eligible to hold a bridging visa.

14. The applicant indicated in the hearing that there are no children in Australia whose interests are affected by the cancellation of the visa.

15. The applicant indicated that he intends to return to Nepal and does not fear persecution or significant harm in Nepal. The Tribunal therefore does not consider that Australia’s non-refoulement obligations are enlivened in this matter.

16. In summary, while the Tribunal would make allowance for a temporary disruption in the applicant’s studies due to the earthquake in Nepal, the Tribunal is not satisfied that the applicant’s failure to be enrolled in a registered course from cancellation of enrolment until the cancellation of the visa has been for the reason of the earthquake in Nepal. Adverse to the applicant is his lack of study since completing his Certificate IV in Programming in October 2015 until just before the Tribunal hearing in March 2019. The Tribunal takes as adverse to the applicant his breach of condition 8516 and the breach of limitations on work hours on his visa.

17. The Tribunal considers that the hardship to the applicant in not being able to complete studies in Australia is not significant given the lack of the applicant’s commitment to study in Australia when he has had every opportunity to do so. The Tribunal accepts that the applicant’s lack of study progress in Australia may limit his career prospects in Nepal and be disappointing to his family.

18. Balancing discretionary factors, the Tribunal determines to exercise its discretion to cancel the visa. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

19. The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

    David McCulloch
    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.