Adhikari (Migration)

[2019] AATA 4933

Adhikari (Migration) [2019] AATA 4933 (7 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Bigyan Adhikari

CASE NUMBER:  1827627

HOME AFFAIRS REFERENCE(S):           BCC2018/2431457

MEMBER:Michael Biviano

DATE:7 November 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 07 November 2019 at 12:59pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course  – consideration of discretion – financial difficulties – financial capacity to complete studies – duration of breach – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
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 20 September 2018 made by a delegate of the Minister for Home Affairs to cancel the 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 that the applicant had not been enrolled in a registered course of study from 9 August 2017 and he was not compliant with condition 8202 of his visa. The delegate went on to consider whether the factors in favour of cancellation outweighed those against cancellation.   The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 18 October 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

4. The applicant was represented in relation to the review by his registered migration agent.

5. 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

6. 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.

   Did the applicant comply with condition 8202?

7. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:

   ·must be enrolled in a full-time registered course: 8202(2)(a)

   ·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: 8202(2)(b)

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c), and

   ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c).

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

9. The decision record of the delegate of the Department of Home Affairs dated 20 September 2018, which was provided to the Tribunal by the applicant confirms that the Department cancelled the applicant’s Student (Temporary) (Class TU) Higher Education Sector (Subclass 500) visa which was granted on 24 January 2017 and the reasons for the cancellation of the visa (Decision Record).

10. The applicant arrived in Australia on 9 February 2017 pursuant to a Student (Temporary) (Class TU) Student (Subclass 500) visa to study a Master of Professional Accounting at Federation University from 20 March 2017 to 31 December 2018. The applicant had previously obtained a Bachelor of Business Administration from Bokhra University in his home country of Nepal.

11. The Decision Record confirms that the applicant’s enrolment in the Master’s course ceased on 9 August 2017.

12. The applicant gave evidence that he had funded his tuition by obtaining a loan from the Bank of Nepal for 40 Nepalese lakh, which equated to approximately AU$35,000. The applicant gave evidence that the Master of Professional Accounting was a two year course over four semesters and the tuition fees were AU$13,800 per semester which equates to AU$55,200 for the entire course, but he was to receive a 25% discount from Federation University resulting in the applicant paying AU$10,800 per semester, being AU$43,200 for the course.  

13. The applicant gave evidence that he was able to draw down 12 Nepalese lakh for the first semester, which met his tuition fees.

14. The applicant claims that he was no longer enrolled because he failed the Master’s course in the first semester and he was unable to meet the tuition fees for both the second semester in 2017 and the first semester of 2018, due to his family’s financial circumstances. 

15. The applicant gave evidence that the Bank of Nepal refused to advance him funds to meet the tuition fees for the second semester due a change in circumstances. He gave evidence his father was paying the interest on the loan and due to a change in his father’s circumstances going on the pension and ceasing work, the Bank refused to advance any further funds.

16. Under questioning the applicant conceded that the loan was not taken out by him but by his father, and his family was unable to advance him further funds to complete his studies.

17. The Decision Record confirms that the applicant received a Notice of Intention to Consider Cancellation of the visa dated 4 September 2018 (NOICC). On 7 September 2018, the  applicant provided a response to the NOICC as follows:-

    Dear Case Officer,

    I would like to forth the following statement and declaration for your kind perusal.

    I was a regular student in Federation University before. I started my course normally. I realised after going to classes that the teaching method and technique was totally different then that of Nepal. I could not cope with the change. As a result I could not pass in any of the subjects. I was very new in this place and there was no one to give me any suggestions. Nor was there anyone to help me. I became totally frustrated. I was not able to take any decisions about my studies.

    Then in the next semester I could not enrol because of the financial hardship. To add to my
    woes, my parents also could not send me my fees because my parents business in Nepal
    was running down and because of that the bank also refused to issue me the study loan.
    Now all the pressure of my studies as well as my family's pressure was on my head. I talked
    with my University about my situation but there was nothing that they could help me with. So
    I later assumed that they cancelled my CoE. After that I went to the Kings Own Institute (KOI) for enrolment. At KOI also I was not able to deposit the full sum of amount of fee. I tried to convince them that I will pay them in two instalments but they refused. Due to this reason they could not give me CoE or enrol me.

    But now I have overcome all of my problems and collected the fees for Masters in Professional Accounting course. I have applied for the COE and was waiting for that. The response from the college was also positive, and in the mean time I received the notice of intention to consider cancellation of visa. I got this letter while waiting for confirmation to join MPA course. This is a chance for me to set my career path right. So please if you can give me one chance then I will complete the course in 16 months and return back to Nepal and have a good life and a career.

    Therefore, I humbly request you to not cancel my visa and give me a deadline to enrol for MPA course.

    Sincerely,

    Bigyan Adhikari

    (Response)

18. The applicant readily conceded in evidence and the Response that by not paying the tuition fees for the second semester, that he was not enrolled in a registered course of study from 9 August 2017 until the date of the visa cancellation on 20 September 2018.

19. On the evidence before the Tribunal the applicant was not enrolled in a registered course between 9 August 2017 and 20 September 2018. Accordingly the applicant has not complied with condition 8202(2) of his visa. As this was a condition which was attached to his visa, the applicant therefore breached a condition of his visa and the visa is liable to cancellation under s.116(1)(b).

    Consideration of the discretion to cancel the visa

20. 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’.

    The purpose of the visa holder’s travel and stay in Australia; whether the visa holder has a compelling need to travel or to remain in Australia

21. The applicant gave evidence that he came to Australia to study and undertake the Master of Professional Accounting.

22. Notwithstanding that the applicant has been in Australia since 9 February 2017, being two years and nine months, he has only studied the first semester in the Master’s course for which he gave evidence that he failed all four subjects that he studied. He claims he struggled due to the different methods in teaching between Australia and Nepal.

23. The applicant has through the Response and evidence at the hearing claimed that, essentially, his non-enrolment on 23 May 2017 arose by reason that he was unable to meet the tuition fees for both the second semester in 2017 and the first semester of 2018 due to his family’s financial circumstances. The applicant gave evidence that he had sought to enrol in the Master of Professional Accounting at Kings Own Institute (KOI) between one to two months prior to the cancellation of the visa, but he had not been accepted by KOI prior to the cancellation. The applicant gave evidence that the KOI course was significantly cheaper than the course at Federation University at AU$6,000 per semester, and he had hoped to do the course and pay by instalments.

24. It would appear from the applicant’s evidence that whilst he was not enrolled in a course of study from 9 August 2017, he ceased attending classes in June 2017.  The period of non-enrolment from 9 August 2017 until the cancellation of the visa on 20 September 2018 is a period of 13 months and 11 days, which is a long period of time not to be studying in Australia, which creates doubts as to whether the applicant has travelled and stayed in Australia for the purposes of study.

25. The applicant has given evidence that if possible he intends to remain in Australia to complete his Master of Professional Accounting. The applicant claims that his financial position has improved now and he is able to pay his tuition fees and return to study. The applicant gave evidence that he would seek to enrol at KOI and undertake the Masters of Professional Accounting. He claimed that he had saved between AU$10,000 to AU$15,000 and would be able to pay for his tuition fees by borrowing money from friends and seeking to earn money from his employment. The applicant gave evidence that he was working 12 to 15 hours per week as a cleaner, earning approximately $21 per hour, but in the last three to four months he has taken a job as a cleaner at Kmart earning approximately AU$500 per week, working on average 18 hours per week. The applicant claims that if he can finish the course he will return to Nepal, view his opportunities and get a job. However, he was unable to identify a job he would undertake. Based on the applicant’s own evidence, the Tribunal is not satisfied that even if the cancellation of the visa were set aside that the applicant would be able to pay his tuition fees for that course.

26. The applicant was given the opportunity to file documents after the hearing that he wanted the Tribunal to consider in support of his application. He was given until 25 October 2019 to file such supporting documents. At the applicant’s request on 25 October 2019, the applicant sought a further extension of two weeks to file supporting documents. The Tribunal refused the request for a two week extension on the basis that the documents to be filed with the Tribunal were documents that ought have been provided either prior to or at the hearing and the Tribunal had provided the applicant with an indulgence to give him more time to provide documentary evidence in support of his claim. However the Tribunal granted the applicant an extension of a further week to provide any further documents in support of his application, which was required to be undertaken by 1 November 2019.

27. On 1 November 2019 the applicant provided the following documents in support of his application:-

    a.Email from Federation University dated 6 June 2017, regarding enrolment in semester 2 of the Masters of Professional Accounting and confirming that the enrolment period was from 11 July 2017 to 14 July 2017;

    b.Letter purportedly from his father to the Department of Home Affairs, dated 26 November 2019, explaining that he was unable to send tuition fees during the second semester, presumably of 2017, because he had given it to the bank and he was unable to send tuition fees. The letter further claims that the bank could not trust him and his daughter who had recently married. It is unclear from the letter why the bank could not lend the funds to the applicant’s father in 2017 and the letter makes no mention of his circumstances in 2018. The letter states in general terms that the bank was now ready to issue the loan for the applicant’s studies.

    c.Note from the applicant to Department of Home Affairs dated 1 November 2019 (Note), outlining that the applicant went to Aussie Visa Zone in February 2018 to enrol at KOI but he was unable to do so as the college was not prepared to accept he pay his tuition fees by instalments and not allow him to enrol part time.

    (Further Documents)

28. While the Further Documents support the applicant’s claim that was able to re-enrol at Federation University, they confirm that his failure to enrol was due to his financial circumstances. The letter from the applicant’s father and the Note are in many respects self- serving and very general and do not provide actual evidence of the true financial position of the applicant’s father or that the applicant attempted to enrol at KOI.

29. Having regard to the applicant’s evidence the Tribunal accepts that the applicant may have travelled to Australia intending to study and that he does intend studying in the future but given his conduct in Australia as set out above and his ability only to study for one semester since his arrival in Australia in February 2017, the Tribunal gives these matters only marginal weight towards the visa not being cancelled.

    The extent of compliance with visa conditions

30. The applicant gave evidence that he was not enrolled in a course of study from 9 August 2017 until the cancellation of the visa on 20 September 2018. This is a period of 13 months and 11 days which is a long period of time.  Therefore the applicant has not complied with condition 8202(2) for a long period of time.  The non-compliance with condition 8202(2) for such a long period of time may weigh towards cancelling the visa unless the Tribunal accepts his reasons for non-enrolment or finds he was not responsible for the reason of non-enrolment. 

31. The applicant in evidence explained why he was not enrolled for almost 13 and a half months, which are set out above. The Tribunal does not find those reasons compelling in circumstances where the applicant was essentially the cause of the non-enrolment by not paying tuition fees. 

32. The applicant by providing the Further Documents, has only submitted limited supporting evidence about his financial circumstances and inability to pay his tuition fees.

33. The applicant gave evidence that he sought to re-enrol with Federation University and pay by instalments which was refused, and he sought the advice of an education consultant who told him that he was unable to help him without having sufficient funds to meet his tuition fees.

34. The applicant claims he applied to enrol at KOI between one to two months prior to the cancellation of the visa, but KOI did not accept his application before the cancellation of his visa. However such evidence is inconsistent with the statement contained in the Note that he sought to enrol at KOI in February 2018.  In any event, the applicant was unable to enrol in that course.

35. The applicant gave evidence that during the period of not being enrolled in a course he continued working but was unable to get enrolled.

36. The Tribunal finds that primary reason for the non-enrolment was the non-payment of tuition fees, which was the responsibility of the applicant, and the applicant was expected to have all appropriate arrangements in place to meet the tuition fees before commencing his studies in Australia. The Tribunal finds it concerning that after one semester of studies the applicant was unable to meet his tuition fees.

37. The Tribunal gives substantial weight to the period of non-enrolment and the duration of the breach towards the visa being cancelled.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

38. The Tribunal asked the applicant if he or other members of his family would suffer hardship if the visa was cancelled.

39. The applicant gave evidence that the visa cancellation would cause him a substantial degree of hardship as he would not be able to complete his studies and obtain an international degree to get a job in Nepal.  

40. The applicant gave evidence that his family will suffer financial hardship as they have effectively paid his tuition fees by repaying the Bank the loan for the first semester’s fees and they would suffer emotional, mental and social hardship, if their son returned home without an international qualification. It is unclear how they would have suffered financial hardship as he had failed first semester and has to repeat it. The monies they have invested in his studies have been lost regardless of whether the applicant is able to stay and undertake further studies.

41. The applicant claims that if he returns home without a qualification he would be embarrassed and it would substantially impact on his future.

42. The Tribunal finds that these matters may be the consequences of the visa cancellation, but they are not matters which would constitute an overwhelming degree of hardship sufficient to weigh against cancelling the visa.

43. The Tribunal considers that the above matters give marginal weight towards the visa not being cancelled.

    Circumstances in which ground of cancellation arose

44. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control.

45. The applicant gave evidence as to the circumstances that led to the cancellation of the visa as set out above.

46. Ultimately the responsibility regarding enrolment rests with the student and the Tribunal is not persuaded by his reasons for non-enrolment.

47. The applicant knew and was aware that by not being enrolled in a registered course of study he would have been in breach of condition 8202 and that his visa may be cancelled.

48. The primary purpose of the applicant under the visa is to undertake a registered course at a level appropriate to his visa and the applicant was not enrolled for a period of nearly 13 and a half months, which is a long period to be in breach of the visa.

49. The Tribunal has considered the applicant’s explanations for why he was not enrolled for this long a period and therefore in breach of condition 8202(2). The Tribunal does not accept the circumstances were beyond his control or that the circumstances indicate reasonable explanations for not being enrolled for such a period of time. The Tribunal gives this matter substantial weight towards the visa being cancelled.

    Past and present behaviour of the visa holder towards the Department

1. According to the Decision Record, the applicant had responded to the NOICC as set out above. Further, there was no information before the Department indicating any specific matters of relevance regarding the applicant’s behaviour towards the Department. The Tribunal gives this factor marginal weight towards the visa not being cancelled.

   Whether there would be consequential cancellations under s.140

2. As the cancellation of the visa does not affect the visa of any other person, this matter is not relevant in this application and the Tribunal gives this no weight towards the visa not being cancelled.

   Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

3. If the Tribunal decides to affirm the decision to cancel the visa under these grounds, then the applicant will become an unlawful non-citizen and liable to detention under s.189 and removal under s.198 of the Act if he does not voluntarily depart Australia. Further, pursuant to s.48 of the Act, the applicant will have limited options to apply for further visas in Australia, so he would need to depart Australia and apply from overseas for most types of visas.

4. Further, if the Tribunal decides to affirm the decision to cancel the TU 500 student visa under these grounds, then the cancellation will come within the identified risk factors to make the applicant meet Public Interest Criterion 4013 of Schedule 4 to the Regulations, so if the applicant decides to apply for a new visa from overseas if he has to depart Australia, then that application may not be approved within the next three years.

5. However, these consequences are the intended consequences of the legislation when a visa is cancelled under these grounds.

6. The applicant gave evidence that if the visa remained cancelled he would return to Nepal and therefore there is no indication that he would become unlawful or be subject to detention.

7. Accordingly, the Tribunal gives this factor marginal weight towards the visa not being cancelled.

   Whether 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

8. This matter does not appear relevant in this application as the applicant gave evidence that if the visa remained cancelled he would return to Nepal. He did not give any reasons as to why he could not return to Nepal and he has not made any claims that relate to this consideration. Accordingly the Tribunal gives this factor no weight towards the visa not being cancelled.

   If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

9. This matter is not relevant in this application as the cancelled visa is a temporary visa and the Tribunal gives this factor no weight towards the visa not being cancelled.

   Any other relevant matters

10. The Tribunal is not aware of any other relevant matter in relation to the decision whether the visa ought to be cancelled.

    Conclusion

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

    DECISION

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

    Michael Biviano
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(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.