Adhikari (Migration)

[2019] AATA 1678

Adhikari (Migration) [2019] AATA 1678 (27 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dinesh Adhikari

CASE NUMBER:  1820341

HOME AFFAIRS REFERENCE(S):           BCC2018/1213272

MEMBER:P. O'Farrell

DATE:27 May 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 27 May 2019 at 1:22pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – medical documents dated after cancellation of enrolment – failure to remedy 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 5 July 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 the applicant has not been enrolled in a full-time registered course and does not meet the requirements of conditions 8202(2)(a) of his 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.    The applicant appeared before the Tribunal on 27 May 2019 to give evidence and present arguments.

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:

·be enrolled in a registered course, or in limited cases, a full time course of study or training: 8202(2)(a)

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

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

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 applicant confirmed that he had not been enrolled in a registered course of study since 21 September 2017.

10.The Tribunal finds that the applicant has not been enrolled in a registered course of study since 21 September 2017.

11.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

12.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’.

13.The Department sent a NOICC to the applicant on 13 June 2018.

14.The applicant provided a response to the NOICC.  In the response, it is stated that the applicant completed an English course that led him to undertake further study of VET courses.  He chose to enrol in a hospitality course at Acumen Education Pty including Advanced Diploma of Hospitality Management, Diploma of Hospitality Management, Certificate IV in Commercial Cookery and Certificate III in Commercial Cookery.

15.He stated that he had achieved significant course progress on the Certificate III in Commercial cookery and before he completed it, he encountered several personal issues associated with his marriage and a car accident which led to mental stresses and pain in his shoulder which required pain relief for more than 3 months.  He provided medical certificates from 2015 relating to stress and reference to a divorce with his wife.  He also provided documents relating to medical treatment in October 2017 and November 2017 relating to a neck sprain.

16.The Delegate report records that the enrolment cancellation information cites non-commencement of studies as the reason for cancellation.

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

17.In the response to the NOICC, it was submitted that the applicant initially came to Australia as a secondary applicant to his then wife’s student visa.  Department records illustrate that this dependent visa was granted on 13 April 2011.

18.He subsequently decided to undertake studies himself as he stated that qualifications from Australia are highly regarded in Nepal.  He subsequently applied for and was granted a student visa.

19.In his response to the NOICC, he stated that he wants to continue his studies in order to obtain a qualification in Australia which are highly regarded in Nepal.  At the hearing he stated that he wanted to complete his studies. 

20.The Tribunal finds that the failure of the applicant to maintain enrolment is not consistent with the purpose of the applicant’s travel and stay in Australia for the purpose of study and although the applicant may wish to continue studying, he has not demonstrated a powerful or convincing reason for needing to stay.

·the extent of compliance with visa conditions

21.The applicant was granted a TU500 visa for the purpose of study.  The study visa program provides an avenue to allow non-citizens and non-permanent residents to study in Australia.  In order to be granted and remain compliant with student visa obligations, the visa holder must maintain enrolment.

22.The applicant has not complied with the condition attached to his visa as he has not been enrolled in a full-time registered course of study since 21 September 2017.

23.The NOICC was sent to the applicant on 13 June 2018 – some 8-9 months after the applicant’s educational provider cancelled the enrolment. 

24.I consider that the breach of condition 8202(2) here is significant, having been for a long period. I therefore give the lengthy breach of condition 8202 some weight towards the visa being cancelled.

25.The Tribunal finds that the applicant appears to have complied with his visa conditions apart from 8202.  The Tribunal gives some weight towards the visa not being cancelled in this respect.

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

  26.In his response to the NOICC, the applicant indicated that if his visa is cancelled, he could not continue his studies in Australia and that this would cause disappointment to his parents who he indicated have high expectation of him in terms of obtaining a qualification in Australia.

  27.The applicant referred to personal difficulties following his divorce and the car accident and that he had difficulty facing people.  He stated that he didn’t want to tell his parents about his enrolment/visa situation.

  28.In his response to the NOICC, the applicant stated that he had invested a lot of money towards his education and that if the visa is cancelled, this may have consequences for his future and put stress on his parents.

  29.I accept that there would be some hardship to the applicant and his family if the visa remained cancelled, and I accept that there may be some difficulties for the applicant with his family and his career. However, I do not accept, on what he has said and the information before me, that such hardship is significant and I give this only little weight towards the visa not being cancelled.

• circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. 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

  30.The grounds for cancellation arose because the applicant failed to maintain enrolment in a full-time registered course of study.

  31.In response to the NOICC, the applicant referred to personal problems relating to his marriage and being involved in a car accident/pain treatment.

  32.The medical documents provided by the applicant in relation to mental stress were from 2015 and these made reference to his divorce during that year.  The medical documents relating to treatment/pain were dated after the date of cancellation of enrolment.  The applicant did not present any evidence in relation to the car accident that was dated prior to the cancellation of the enrolment.  Because of the dates of the documents, the Tribunal gives little weight to the medical documents towards the visa not being cancelled.  I am not sufficiently satisfied by his evidence and the information before me that these explain the reasons for the breach in this case.

  33.The applicant stated that he did not receive the cancellation of enrolment notification from his educational provider and that he approached his educational provider after receiving the NOICC.  His response to the NOICC advises that his educational provider would have re-enrolled him subject to payment of fees, but he advised that he found this to be unreasonable.  The Tribunal finds that at this point, the applicant was aware of his breach, that he was not enrolled, but decided not to re-enrol.  This was a circumstance within the control of the applicant.  The Tribunal finds that the applicant’s choice not to re-enrol at this point weighs in favour of cancellation.

• past and present behaviour of the visa holder towards the department

  34.The delegate report states that the applicant has been cooperative in his dealings with the Department.  I give this some weight in favour of the visa not being cancelled.

• whether there would be consequential cancellations under s.140

  35.There would be not consequential cancellations under section 140 as a result of cancellation.

• 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

  36.The Tribunal is mindful that the applicant could become an unlawful noncitizen and detained and removed from Australia, and it may be difficult to be granted further visas, and he may be subject to a three-year exclusion period unless relevant Public Interest Criterion is met.

  37.It is unlikely however that the visa applicant will be detained but rather provided with a time-limited period in which he can leave the country or apply for review of the decision.

• 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

  38.The circumstances of this matter are not such that would engage Australia’s international obligations.

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

  39.Not relevant.

• any other relevant matters.

  40.The applicant was asked during the hearing whether there were any other relevant matters that he wanted to bring to the attention of the Tribunal.  I have carefully considered the evidence of the applicant but I find he has not provided any other relevant matters that go to the visa not being cancelled.

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

  DECISION

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

  P. O'Farrell
  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.