BASNET (Migration)

[2018] AATA 1562

BASNET (Migration) [2018] AATA 1562 (15 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Bipin BASNET

CASE NUMBER:  1702624

DIBP REFERENCE(S):  BCC2016/4242968

MEMBER:Nicola Findson

DATE:15 April 2018

PLACE OF DECISION:  Perth

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

Statement made on 15 April 2018 at 4:19pm

CATCHWORDS
Migration – Cancellation – Student (Temporary) – (Class TU) visa – Subclass 573 Higher Education Sector – Enrolment in a registered course – Unable to pay tuition fees – Family member’s ill health – Unsatisfactory attendance – Course cancelled – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 116, 362B
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 9 February 2017 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).  The delegate cancelled the visa because the applicant was not enrolled in a registered course of study. 

2. The applicant was represented in relation to the review by their registered migration agent. A copy of the delegate’s Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

3. On 26 March 2018, the Tribunal wrote to the applicant, via his representative, and informed  him that the Tribunal had considered the material before it relating to the review but was unable to make a favourable decision on that information alone.  The Tribunal invited the applicant to attend a hearing on 12 April 2018, to give evidence and present arguments. The applicant was informed that if he was not able to attend the hearing he should advise the Tribunal as soon as possible and that the Tribunal would change the date if satisfied that he had a good reason for being granted an adjournment.  He was informed that if he did not attend the scheduled hearing the Tribunal may make a decision without taking any further action to enable him to appear before it. The applicant was sent two text messages to remind him about the hearing on 5 April and 11 April 2018. 

4. The Tribunal did not receive any response to its letter of 26 March 2018 and there was no appearance by either the applicant or his representative at the scheduled hearing. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision without taking any further action to enable the applicant to appear before it.

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)

   ·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).

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

9. The delegate’s decision record (a copy of which was provided to the Tribunal by the applicant) states that the applicant was granted a student visa on 18 June 2014.  Further, he was sent a Notice of Intention to Consider Cancellation (NOICC) of his student visa on 12 January 2017.  In summary, that NOICC set out the statutory basis for the consideration of the cancellation of the applicant’s student visa and also that the Provider Registration and International Student Management System (PRISMS)  indicated that the applicant had not been enrolled in a registered course of study since 20 May 2016.

10. The applicant responded to the NOICC, through his registered migration agent, on 7 February 2016.  He agreed that the ground for cancellation existed and he provided the following information:

    ·He originally came to Australia to enhance his skills by undertaking studies towards a Diploma of Business and then a Bachelor of Business. 

    ·After his arrival he commenced the Diploma of Business.  At the end of 2015, he returned to his home country, Nepal, for family reasons (his mother was not keeping well) and while there reassessed his choice of studies.  After discussing the issue with a mentor he decided that specialising in Hospitality would result in better employment prospects in Nepal.  He undertook research on how he could switch courses without breaching the conditions of his visa, and subsequently sought exit from his studies at Edith Cowan University to enrol in Certificates III and IV of Commercial Cookery; a Diploma of Hospitality; and a Bachelor of Business (Management) at Cambridge International College.  He paid for his initial course commencing early in February 2016 while he was in Nepal.

    ·In about April 2016, he learned that his mother’s health had worsened and she needed intensive medical care.  He provided a medical certificate dated 8 February 2017, which stated that his mother suffered from “severe chronic fatigue syndrome from 2 April to 11 April 2016, and continuing follow-up”. The applicant’s father, who is employed in Dubai, had to divert funds meant for the applicant’s education for his mother’s medical costs.  As a result the applicant was left temporarily unable to pay his tuition fees and continue in his course.  He was unable to enrol in the second semester of 2016.  He informed the institution – Cambridge International College – of his circumstances, but was verbally refused a deferment.  He was also refused re-enrolment when he sought it a later date.

    ·His parents have invested all their savings in his studies. 

    ·His mother has recently recovered and his father has again commenced funding his study and stay in Australia.

    ·He has obtained a Confirmation of Enrolment (CoE) to commence studies immediately towards his Diploma of Business.

11. On the evidence before the Tribunal, the applicant was not enrolled in a registered course after 20 May 2016. 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 to exercise its 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 in his response to the NOICC as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3).

14. The purpose of a student visa is to enable the visa holder to undertake study in Australia.  Having regard to the information before it, the applicant may have travelled to Australia originally intending to study.  However, the Tribunal finds that the applicant was not fulfilling the purpose of his travel to and his stay in Australia because he had not been enrolled in a registered course of study from 20 May 2016, approximately nine months prior to the delegate’s decision. 

15. As to the extent of the applicant’s compliance with any conditions to which the visa was subject, the Tribunal is not aware the applicant breached any other conditions of the visa.

16. The applicant claims, in his response to the NOICC, that a visa cancellation will destroy his aspirations of completing his education in Australia and a sound career and future for himself.  He also claims his parents will suffer tremendous emotional and financial hardship if he returns to his home country without completing his studies.  The Tribunal acknowledges that the cancellation of the applicant’s visa may cause him and his family some hardship. However, the Tribunal is satisfied that there is not a degree of hardship to mean that the visa should not be cancelled.

17. With respect to the circumstances in which the ground of cancellation arose, the applicant claimed in his response to the NOICC, that: his mother needed intensive medical care, and provided corroborating evidence in the form of a medical certificate dated 8 February 2017, which stated his mother suffered “severe chronic fatigue syndrome from 2 April to 11 April 2016, and continuing follow-up”; he requested a deferral from the institution, which was verbally refused; and his father, who was employed in Dubai, had to divert funds intended for his education to his mother’s medical treatment, which resulted in him being unable to pay his tuition fees for Semester Two 2016.  However, and as also noted by the delegate, the PRISMS indicates that the Cambridge International College cancelled the applicant’s Certificate III in Commercial Cookery course for unsatisfactory attendance for the study period from 8 February to 24 April 2016, which was prior to his mother requiring medical attention in April 2016.  He was issued a written notice of intention to report, which included information on his right to appeal within 20 days, however, he did not lodge any appeal. Additionally, the applicant has not provided any evidence of his request to defer, nor of his attempt to re-enrol with Cambridge International College after 20 May 2016.  While the information before the Tribunal indicates that the applicant obtained a CoE to commence studies towards a Diploma of Business at the Keystone College of Business and Technology on 7 February 2017, this was after he received a NOICC on 12 January 2017.  The Tribunal is not satisfied this evidence should prevent it from exercising its discretion in this case.

18. Nothing adverse is known about the applicant’s past and present conduct towards the Department.

19. The Tribunal is not aware that there are any persons in Australia whose visas would be impacted if the applicant’s visa is cancelled. 

20. The Tribunal is mindful that the delegate’s decision indicates that if the applicant’s visa were to be cancelled he would become unlawful and could be liable for detention under s.189 and removal under s.198 of the Act, if he does not voluntarily depart Australia. Further, the applicant will have limited options to apply for further visas in Australia. He will also receive a three year exclusion period because of the cancellation for a breach of condition 8202.

21. There is no evidence before the Tribunal to suggest that Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation. 

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

    DECISION

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

    Nicola Findson
    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.