ADHIKARI (Migration)

[2017] AATA 2503

ADHIKARI (Migration) [2017] AATA 2503 (15 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr SURAJ ADHIKARI

CASE NUMBER:  1614093

DIBP REFERENCE(S):  BCC2016/2438234

MEMBER:Antoinette Younes

DATE:15 September 2017

PLACE OF DECISION:  Sydney

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

Statement made on 15 September 2017 at 12:30pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – No enrolment in a registered course – Not achieved any study goals

LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 29 August 2016 made by a delegate of the Minister for Immigration 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 delegate cancelled the visa on the basis that the applicant has breached condition 8202 attached to his visa. 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 14 September 2017 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent.

4. 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

5. 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?

6. 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).

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

8. In the course of the hearing, the Tribunal discussed with the applicant information contained in the delegate’s decision record which the applicant provided to the Tribunal in support of the application for review. Specifically, the Tribunal indicated to the applicant that information available to the Department in the Provider Registration and International Student Management System (PRISMS) shows that the applicant had not been enrolled in a registered course of study since 7 May 2015.

9. The applicant gave evidence that he came to Australia at the end of February 2014 to undertake a Diploma and a Bachelor of Information Technology at Queens Institute of Business and Technology (QIBT). He stated that he attended all classes for four months but he did not sit for the exams. He said he subsequently requested cancellation of his Confirmation of Enrolment (CoE) which was cancelled a few months later but he was uncertain of the date. He stated that he later enrolled in a commercial cookery course which he left due to financial problems. The Tribunal noted that the commercial cookery course would not have been commensurate with courses expected for the subclass 573 visa.

10. The applicant referred the Tribunal to evidence provided that he is currently enrolled in the Diploma and an Advanced Diploma of Leadership and Management courses. Although the applicant could not recall when the CoE was cancelled, he did not dispute that until his recent enrolment, he had not been enrolled in a registered course. As referred to in the delegate’s decision record, the evidence before the Tribunal is that at the time of the Notice of Intention to consider cancellation (sent on 8 August 2016), the applicant had not been enrolled in a registered course since 7 May 2015.

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). It therefore follows that the ground for cancellation exists.

12. 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.

    Consideration of the discretion to cancel the visa

13. 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).

    The purpose of the applicant’s travel to and stay in Australia

14. The applicant was granted the visa to study in Australia. The Tribunal observes that since his arrival in Australia, and although the applicant has not complied with condition 8202, the applicant has been enrolled in various courses and has paid fees.

15. On the evidence before it, although the Tribunal has some doubt, the Tribunal accepts as plausible that the applicant’s purpose to travel to and stay in Australia was to study. The Tribunal has given this aspect some weight but given the extent of the breach, the Tribunal is not satisfied that this means that the visa should not be cancelled.

    Reason and extent of any breach of a visa condition (if relevant).

16. In a statement to the Tribunal, the applicant indicated that:

    a.He is 21 years of age and he is a citizen of Nepal. He came to Australia in February 2014 on a subclass 573 visa. His grandfather was his biggest supporter financially and emotionally and the applicant was dependent on him. He is an only son and his family has high expectations of him.

    b.His grandfather died on 7 April 2014. He was a farmer and a business owner when he died. Following his death, the applicant’s father had to look after the business but it had suffered financially which meant that the family could not support the applicant. The business was further impacted following the Nepalese earthquake. It took some time for the family to re-establish and his father saved money to support the applicant in his studies.

    c.He is currently enrolled and he is punctual and focused on his studies. He is aware that he did not respond to the notice of intention to consider cancellation but this was due to stress; he was upset, immature and hope all would be fixed. He is aware of his mistakes and he asks for another chance. If his visa were to be cancelled, this would bring shame to the family and it would impact on his future. It would very difficult for him to get admission in a good university in Nepal due to the gap in his studies. His employment prospects would be slim.

    d.His parents have done everything possible for him and he does not want to disappoint them. He would like to complete his studies so he could return to Nepal and support his family

17. In submissions to the Tribunal, the applicant’s representative indicated that when the applicant arrived in Australia he was only 18 years old and he had to adjust to doing everything on his own. Before he could settle, his grandfather passed away and the applicant’s financial situation changed. The applicant dealt with the situation in the best way that he could and he is currently enrolled in a registered course. He is focused and intends to finish his studies and if he were forced to return home “empty-handed”, he and his family would face shame.

18. The applicant provided the Tribunal copies of a death certificate dated 13 January 2015 relating to the death of Mr Gangadhar Adhikari, balance certificate dated 1 September 2017 showing a balance of NPR 2,451,331.21, document titled to whom it may concern dated 5 September 2017 from the applicant’s father stating that he financially supports the applicant, CoE at Onyx Developments Pty Ltd (OD) in the course of Advanced Diploma of Leadership and Management commencing on 20 August 2018 and finishing on 18 August 2019, CoE at OD in Diploma of Leadership and Management course for the period commencing on 21 August 2018 and finishing on 19 August 2018, document referring to the applicant’s attendance rate in the course of Diploma of Leadership and Management.

19. In the course of the hearing, the applicant gave evidence that his grandfather’s death impacted on him emotionally. He stated that money had to be spent on his grandfather’s treatment. He further stated that the Nepalese earthquake impacted financially on the family. The Tribunal noted that he has not provided corroborative evidence about the cost of his grandfather’s treatment or any impact due to the Nepalese earthquake. He stated that he tried to get evidence but was unsuccessful.

20. On the evidence before it, the Tribunal accepts that the applicant’s grandfather died and the Tribunal is aware that there was an earthquake in Nepal in April 2015. The applicant has not provided any corroborative evidence relating to the claimed financial impact of the grandfather’s illness or the earthquake. On the basis of the available information, the Tribunal is not satisfied that the grandfather’s illness or the earthquake impacted on the family financially as claimed by the applicant. As discussed in the course of the hearing, the applicant has been in Australia for over 3 years, and he has not achieved any of his study goals or met the study objectives of the subclass 573 visa which he was granted.

21. The Tribunal has carefully considered the applicant’s explanations. On balance, the Tribunal considers the breach to be significant and means that the visa should be cancelled.

    Degree of hardship that may be caused

22. The Tribunal acknowledges that the applicant has spent money on course fees and that his parents would be concerned in case of him returning to Nepal without a degree. The Tribunal is also mindful that the applicant is currently enrolled in a course and he provided evidence of attendance of 86.7%.  The Tribunal asked the applicant why he would face difficulties in getting admission into a course in a Nepalese university. He stated that because there has been a four-year gap. The Tribunal accepts as plausible that if the applicant were to return to Nepal, he may face some difficulties due to the four-year gap but the Tribunal does not consider any such difficulties to amount to a degree of hardship to mean that the visa should not be cancelled.

23. If the visa were to be cancelled, the applicant would not be able to complete the course in which he is currently enrolled. However, the fact is since his arrival in Australia, the applicant has not achieved his study goals or met the study objectives of the subclass 573 visa.

24. The Tribunal recognises that the cancellation of the applicant’s student visa could result in the applicant becoming an unlawful noncitizen and consequently liable for detention and removal from Australia. He could also face difficulties in obtaining another Australian visa and he may be required to return to Nepal. The Tribunal is of the view that those are legitimate consequences in the migration program and in this instance, the Tribunal is not satisfied that they mean that the visa should not be cancelled.

25. The Tribunal has carefully considered the applicant’s circumstances but the Tribunal is not satisfied that there is a degree of hardship that means that the visa should not be cancelled.

    Circumstances in which ground of cancellation arose

26. As outlined above, the applicant has not enrolled in a course for a substantial period, contrary to a condition attached to his visa. The applicant’s personal circumstances as accepted by the Tribunal and for the reasons explained do not mean that the visa should not be cancelled.

    Past and present conduct of the visa holder towards the department

27. The applicant did not respond to the notice of intention to consider cancellation. The Tribunal asked the applicant why he did not respond and he stated that he was stressed and immature. He stated that he has relied on his father to “fix everything” but he has now matured.

28. The Tribunal is not persuaded by the applicant’s explanations and reasons for not responding to the notice of intention to consider cancellation. The Tribunal is of the view that it is important for a visa holder to respond to the Department, amongst other things, to facilitate communication between the Department and the visa holder.

29. The applicant’s lack of response to the Department suggests a number of things, including a level of disregard for the conditions of the visa he was granted. The notice of intention to consider cancellation is a significant process and the Tribunal would have expected a visa holder in that situation to take the matter seriously and to provide explanations.

30. The Tribunal has taken this aspect into account in deciding that the visa should be cancelled.

    If breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate and compelling factors

31. This is not a breach of the holder of a subclass 457 visa.

    Whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation

32. As discussed earlier, the applicant could become unlawful and may be subject to detention but these are consequences of the legislation and the Tribunal is satisfied that in this case, they do not mean that the visa should not be cancelled.

    Whether there would be consequential cancellations under s.140

33. There is no evidence before the Tribunal and the applicant is not claiming that there would be any consequential cancellations under s.140.

    Whether any international obligations would be breached as a result of the cancellation

34. On the evidence before it, the Tribunal is not satisfied that any international obligations would be breached as a result of the cancellation.

    The impact on any victims of family violence

35. There is no evidence of family violence in this case.

    Any other relevant matters raised by the visa holder

36. There are no other matters requiring consideration by the Tribunal.

37. Considering the circumstances individually and as a whole, the Tribunal concludes that on balance, the visa should be cancelled.

    DECISION

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

    Antoinette Younes
    Senior 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.