Basyal (Migration)

Basyal (Migration) [2019] AATA 3971 (19 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Bipin Basyal
CASE NUMBER:  1702622
HOME AFFAIRS REFERENCE(S):           BCC2016/3726027
MEMBER:Justin Owen
DATE:19 June 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
Statement made on 19 June 2019 at 11:57am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – enrolment cancelled – non-payment of fees – mental health claims – no evidence provided – no evidence of deferral – significant 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

This is an application for review of a decision dated 6 February 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).
The applicant is a national of Nepal born 4 July 1991. His Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa was granted on 5 February 2016 and was subject to condition 8202. On 24 January 2017 the applicant was issued with the 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 had not been enrolled in a registered course of study since 3 March 2016. The applicant failed to respond to the NOICC. On 6 February 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 delegate cancelled the visa on the basis that the applicant had not complied with the requirements of condition 8202 (2)(a) of the 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.
The applicant appeared before the Tribunal on 31 May 2019 to give evidence and present arguments.
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
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?
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).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.
At the hearing the applicant conceded that he had not been enrolled in a registered course of study, blaming stress from a divorce with his former wife that occurred whilst he was studying. He stated he was currently not enrolled in a registered course of study at the higher level and had not done so since the cancellation by the delegate over two years ago. He said that after the cancellation of his visa no education provider would provide him with a CoE.
Given the applicant had not supplied the Tribunal with a copy of the delegate’s decision record of 6 February 2017 cancelling his visa, the Tribunal put the information contained in the decision record to the applicant under s359AA. The Tribunal provided the applicant with a copy of the delegate’s decision record.
The Tribunal provided the applicant with the particulars. The Tribunal informed the applicant that the Department’s decision record of 6 February 2017 stated he had not complied with a condition of his Student visa. He was informed the decision record states that he did not comply with condition 8202-(2)(a) which states that he must be enrolled in a registered course.
The applicant was provided with the particulars that according to the PRISMS records between 3 March 2016 and the time of the delegate’s decision on 6 February 2017 – some 11 months – he was not enrolled in a registered course of study, meaning he did not meet condition 8202.
The applicant was informed that the decision record stated that he did not respond to the NOICC his visa to dispute that the grounds for cancellation exist or provide reasons why the visa should not be cancelled. The applicant was informed that the decision record stated that he did not respond to the NOICC to provide reasons why the non-compliance was beyond his control. The applicant was informed the decision record stated that he did not provide any information relevant to considerations such as the degree of hardship that might be caused to himself or his family as well as the circumstances in which the ground for cancellation arose.
The applicant was informed that the decision record stated that it appeared to the delegate that his current purpose to remain in Australia was not to undertake study as he was not enrolled in a registered course of study.
The applicant was informed that the decision record stated the purpose for which his visa was granted ended since at least 3 March 2016 which was the date his enrolment in a Master of Business Administration was cancelled.
The applicant was informed that the decision record stated that after he ceased his studies in a Master of Professional Accounting course on 19 February 2016, he had put little effort in recommencing his studies by enrolling in another course.
The applicant was informed that the decision record stated that since he was granted the 573 Higher Education Sector visa in February 2016 he had completed only one ELICOS level course. The applicant was also informed the decision record stated that it had been one year since he was granted his Higher Education Sector visa yet he was only actively involved in study for four months.
The applicant was informed that the decision record stated that, according to PRISMS, on 3 March 2016 the Holmes Institute reported the cancellation of his enrolment in the Master of Professional Accounting and MBA registered courses and he had not been enrolled in a registered course since that date.
The applicant was informed that the decision record stated that according to PRISMS when his enrolment in the Master of Professional Accounting course was cancelled, Holmes Institute advised that the enrolment was cancelled due to non-payment of fees.
The applicant was informed that the decision record stated that he may not have had sufficient funds to study in Australia at the Higher Education Sector level.
The applicant was informed that the decision record stated that there is no evidence that he either sought or were granted a deferral from study.
The applicant was informed that the decision record stated that he had not been forthcoming in providing information when requested of him by the Department as he chose to neither address the grounds for cancellation that were put to him in the NOICC or to provide any information about his current circumstances to take into consideration.
The Tribunal also put the information contained in the applicant’s Provider Registration and International Student Management System (PRISMS) record dated 14 March 2019 to the applicant. The Tribunal provided the applicant with a copy of his PRISMS record. The Tribunal put the particulars to the applicant.
The Tribunal explained how the information in the decision record and the PRISMS record was relevant to the cancellation ground and the consequences of the information being relied upon. The Tribunal explained the relevance and consequences of the information and invited the applicant to respond or comment. The applicant was invited to either respond orally at the hearing on in writing at a later date. The applicant elected to respond in writing to the Tribunal. The Tribunal asked the applicant to provide his response to the information that had been put to him by 14 June 2019.
The applicant responded in writing to the Tribunal on 14 June 2019 (T1, Folio.30-35). He did not dispute the ground for the cancellation of his visa. The applicant provided multiple reasons as to why in his opinion the Tribunal should not exercise its discretion to cancel his visa.
On the evidence before the Tribunal, the applicant was not enrolled in a registered course between the dates of 3 March 2016 and 6 February 2017. Accordingly, the applicant has not complied with condition 8202(2).
Consideration of the discretion to cancel the visa
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 Tribunal has considered the purpose of the applicant’s travel to and stay in Australia. The Tribunal considers that the purpose of a student visa is to enable the visa holder to study in Australia. The primary decision record indicates that PRISMS evidence available to the Department indicated the applicant ceased to be enrolled between 3 March 2016 and 6 February 2017. The applicant conceded in his oral evidence that he is not currently enrolled in a course of study, though the Tribunal does note his claim (which was not substantiated with corroborative evidence of any attempts) that he was unable to obtain a CoE since his Student visa was cancelled due to providers being unwilling to issue him with such. The Tribunal notes from the PRISMS records that whilst the applicant has enrolled in multiple higher education courses, he has on multiple occasions now had his enrolment cancelled for non-commencement of studies and/or non-payment of fees. The only education course the applicant has successfully completed whilst a student in Australia is a Beginner to Advanced General English course which ended in 2015. Since being granted his current visa he has not successfully completed any course of study at any level. The Tribunal considers the breach of condition 8202(2) to be significant and that the applicant had not been fulfilling the purpose of his travel to and stay in Australia as a holder of a student visa.
The applicant stated at the hearing that the purpose for his travel and stay in Australia was for study as well as travel purposes. He said there were no other reasons. He stated he had been working in the international hotel industry. He had been doing his internship in the respected Taj Hotels group in places like Malaysia. He said that to prosper he needed accounting and management skills. He said he still had the ambitions to study. In his written response of 14 June 2019 in response to the Tribunal’s s359AA invitation he commented that he wanted to study again as an Australian degree is renowned over the world and he would have a better chance of pursuing his career options. He added that he wanted to complete his MBA due to his hotel management background and the MBA would help him achieve progress in a managerial role in the industry. At the hearing the applicant said there were no other purposes than study. He said the study environment and the quality of the courses was much better in Australia than in Nepal. Based upon the evidence of his significant period of non-enrolment, the Tribunal is of the view that the significant period of time the applicant has spent in Australia has not been for the purpose of study. The Tribunal finds that the applicant has not been fulfilling the purpose of his travel to and stay in Australia as the holder of a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa for the vast majority of time since being granted the visa in 2016. The applicant admits that he has not been enrolled in any course since the cancellation of his visa in February 2017. The Tribunal acknowledges the applicant’s various claims that he found it enormously difficult to secure a CoE after the cancellation of his visa; that he had been suffering from anxiety and stress due to the breakdown of his previous married relationship and that he was not enjoying the support of his own family during this period of time. The Tribunal notes his enthusiastic claims both oral and written that he wishes to recommence his studies and be a success. The Tribunal has taken into account the applicant’s submissions but does not accept that the challenges he faced necessarily precluded him from successfully enrolling, studying and completing his courses. The Tribunal notes the applicant has not been enrolled for a number of years so cancellation of his visa will not have an adverse impact upon any current courses of study. The Tribunal is not convinced that the purpose of the applicant’s travel and stay in Australia has been for higher education purposes. The Tribunal acknowledges his claim in his written submission of 14 June 2019 that his parents are happy to help him financially until he completes his studies in Australia but it does not, based on all the evidence before it, consider the applicant has a compelling need to remain in Australia as a result of his higher education studies. On the evidence before it concerning the purpose of the applicant’s travel to and stay in Australia, the Tribunal weighs this factor in favour of cancelling the visa.
The Tribunal has considered the extent of the applicant’s compliance with visa conditions. The Tribunal considers the applicant’s failure, as outlined in the decision record, to comply with the conditions of his visa by not being enrolled in a registered course of study for almost a year between 2016 and 2017 to be substantial. The applicant in oral evidence to the Tribunal said he had not been enrolled in a course of study since the cancellation of his visa, though the Tribunal notes his claims that he was unable to obtain a new CoE due to education providers being unwilling to issue him with such. The Tribunal has taken into account the applicant’s oral evidence concerning his dealings with the Department and his claims he physically visited the Department after his visa was cancelled to discuss his case. Whilst the Tribunal concedes there is no evidence before it that the applicant has not complied with other conditions attached to his visa, the Tribunal notes that his breach of condition 8202 is substantial. The Tribunal notes the obligation remains with the applicant to ensure he is aware of and meets the conditions of his visa. The Tribunal notes that the applicant had held a Student visa before the cancelled 573 visa that is currently before the Tribunal and is of the view the applicant by 2017 was in all likelihood fairly familiar with the visa process, the imposition of conditions and the potential consequences of non-compliance. The Tribunal has taken into account his arguments concerning his claimed anxiety and mental health, the stress of his marriage failing in 2016 and his claims of a lack of support from his family, all of which he claims impacted upon his ability to successfully study at the higher education level and comply with the conditions attached to his visa. The Tribunal has also taken into account his written statement of 14 June 2019 where he stated he had never been involved in any criminal activity and has acted responsibly. On the evidence before it the Tribunal weighs this factor in favour of cancelling the visa.
The Tribunal has considered the degree of hardship that may be caused to the applicant and his family should his student visa be cancelled.
The applicant claimed at the hearing he married a Nepalese woman in March 2018. The Tribunal notes that on 14 June 2019 the applicant provided photographs of the wedding and a copy of his marriage certificate: the Tribunal accepts that the applicant remarried on 12 March 2018 (T1, Folio.34). The applicant stated at the hearing that his wife is on a student visa studying childcare and has around three years remaining on her visa. He said that he lives with his wife and another couple in a two-bedroom apartment in Guildford. The applicant and his wife are working as a courier driver and in sales respectively. The Tribunal accepts his claims concerning his marriage and his wife. The applicant claimed the cancellation of his visa would cause both his wife and himself hardship. The applicant said he would have to leave his wife. The applicant said that his wife wanted to study in Australia and her course was not available in Nepal, making return for her difficult He also discussed how he and his wife were planning on having a child. The applicant said that it would be very difficult for his wife. He said they were in their early 30s and wanted to start a family. In his written statement of 14 June 2019 the applicant furthermore writes that due to his wife studying in Australia, if his visa is cancelled then he won’t be able to be with her for three more years and this may cause problems with his relationship with his wife.
The Tribunal accepts that cancellation of the applicant’s visa would cause some hardship for both the applicant and his wife on both an emotional and financial level. The Tribunal asked if the applicant’s wife would return to Nepal with the applicant should his visa remain cancelled. The applicant replied that his wife wants to complete her studies in childcare, the course is not available in Nepal, and still has three years remaining on her visa.
The Tribunal accepts that his wife would prefer to remain in Australia to complete her studies rather than depart with the applicant. The Tribunal considers that this is ultimately a personal choice that the applicant’s wife has to make in conjunction with her husband. Similarly the Tribunal does not accept that the applicant will not be able to be with his wife for three years should his visa be cancelled: the applicant’s wife may depart Australia to reunite with her husband in Nepal at any time if she so wishes. The Tribunal accepts it might be disruptive. It does not however accept that the applicant and his wife will be somehow precluded from being together for this period.
On a similar basis the Tribunal notes the applicant’s claims that he and his wife wish to start a family and the cancellation would cause genuine hardship in this regard. The Tribunal notes he repeated the desire in his written statement of 14 June 2019 (T1, Folio.35). The Tribunal accepts the applicant’s claim and notes his statement that he and his wife are now in their early 30s and the impact that age has upon the reproduction cycle. The Tribunal accepts the applicant and his wife have a desire to have their own children and accepts the applicant’s departure may have an adverse impact upon this desire. The Tribunal notes however that the applicant’s wife can return with the applicant to Nepal if she so wishes. There is nothing precluding the applicant and his wife commencing a family back in Nepal. The Tribunal accepts the applicant would prefer to remain in Australia with his wife and to start a family in Australia. It does not however consider that cancelling his visa will preclude him and his wife from commencing their own family if they so wish. The Tribunal also notes that the applicant was the holder of a Student visa – a temporary visa for the purposes of study, not a permanent visa for the establishment of a family. Similarly, the applicant’s wife is also currently the holder of a Student visa.

The applicant discussed his wish to start a childcare business in Nepal after he completed his MBA and his wife completed her childcare studies. He identified a lack of such a service in Nepal. The Tribunal applauds business ingenuity, acumen and motivation. The Tribunal is not however convinced the applicant will be unable to pursue this goal should his visa be cancelled. He is entirely capable of studying and establishing a business offshore. The Tribunal accepts he would prefer to have completed his MBA, and his wife her childcare studies in Australia, before making such a commitment. The Tribunal considers the hardship the cancellation may cause the applicant with this desire to be minimal.
The applicant discussed the hardship the cancellation would cause his own family. The applicant said his family resides in Nepal. He said that his brother works as an agent for students wishing to study in Japan. He said his father is a government official. The applicant said he would be viewed as a failure in his family if he had to return offshore. He said it would have an adverse impact upon his family’s wider reputation and has claimed that his parents are happy to help him financially until he completes his degree in Australia (T1, Folio.35). The Tribunal accepts that the applicant’s family in Nepal will feel a degree of disappointment should the applicant return to Nepal without having graduated at the higher education level. The Tribunal does not consider this to be an unusual or particularly onerous state of affairs and considers the hardship with this factor to be particularly limited. The Tribunal notes that the applicant does not have any other family residing in Australia beyond his wife. The impact upon his departure locally will therefore be limited.
The applicant said he would face hardship via the damage done to his future employment prospects should his visa remain cancelled and he was compelled to return to Nepal and study there. The applicant said it would be difficult to study his MBA in Nepal and this would essentially impact upon his future ambitions to be a manager in the five star international hotel industry. He said social unrest was bad in Nepal and the standard of the educational establishments and their administration was poor. The applicant said that a week ago there was a bomb blast in Kathmandu. The Tribunal again accepts that the applicant would prefer to remain and study in Australia and accepts his assertion he has a real desire to work in the five star hotel industry. The Tribunal notes the applicant’s claims of the dangers of studying in Nepal but in the absence of any evidence of any specific actual or perceived threat gives such a claim in relation to hardship little weight. There is no evidence before the Tribunal either to suggest that studying in Nepal or elsewhere offshore will somehow specifically hinder the applicant’s efforts in seeking a career in the international hotel industry.
The applicant in his written response to the s359AA invitation of the Tribunal mentioned that if he returned to Nepal without the ‘proper degree’ he dreamt of then he wouldn’t be able to face anyone back home, his self-confidence will deteriorate and he would not be able to do well at life. The Tribunal accepts that the applicant may feel some disappointment returning home without a higher education qualification. The Tribunal does not however consider this to be a particularly unusual or onerous situation: the applicant retains the ability to recommence studying in Nepal if he so wishes. The Tribunal does not accept on the evidence before it that the cancellation of the applicant’s visa will necessarily both result in the applicant not being able to do well at life and losing his self-confidence. The Tribunal is of the opinion that such outcomes are at least partially the responsibility of the applicant. The Tribunal found the applicant to be an articulate and bright individual who exhibited what it considered was a genuine interest to succeed in the five star hotel industry. The Tribunal sees no reason why he would not be able to recommence his studies offshore and follow his ambitions if his Student visa was to be cancelled.
The Tribunal notes the applicant’s claims that he is working in a casual job as a courier driver whilst his wife works in sales in a casual role in Camperdown. The applicant said both he and his wife pay the household costs such as rent. The Tribunal accepts that some degree of financial hardship may be sustained by his wife should she remain in Australia if he has to return offshore due to the loss of his income to their household. The Tribunal however sees no reason why the applicant would not be able to acquire gainful employment should he return to Nepal and his wife decides to remain in Australia. The Tribunal notes that the applicant can continue to support his wife financially through transferring funds to her from offshore as he and his wife see fit.
The applicant alluded to civil unrest in Nepal and raised bomb blasts that had occurred in Kathmandu. He expressed some concern about returning to Nepal in such circumstances and repeated his concerns about civil unrest and its impact upon his studies in his written statement (T1, Folio.35). The Tribunal accepts there has been a degree of civil unrest but in the absence of evidence any specific threats or warnings made against the applicant gives such a general claim little weight.
The Tribunal has considered the applicant’s statements concerning his state of mind after the end of his first marriage and what psychological or emotional hardship might be caused to him should his visa be cancelled. The Tribunal accepts the period of absence from his then wife and the subsequent end of his first marriage was difficult for the applicant. The Tribunal asked the applicant about any treatment he received for his mental state and general mental health for his claimed anxiety and depression due to circumstances related to his previous marriage and divorce. The applicant said he once visited a female doctor who told him he was not depressed but to essentially get his life back together. There is no evidence or claim of any mental health plan or treatment. The applicant in oral evidence said his mental state had improved since that time. On the evidence before it the Tribunal does not consider any significant degree of psychological hardship will be imposed upon the applicant should his student visa be cancelled.
The Tribunal notes the concerns the applicant has raised in his oral testimony and in his correspondence of 14 June 2019 concerning the standard of education in Nepal and his concerns how this will impact upon his future academic and employment goals. He has essentially claimed departing the Australian higher education system and returning to Nepal or another offshore education system will have a corrosive impact upon his future employability. The Tribunal acknowledges the applicant’s arguments but, given his continual failure to remain enrolled with Australian higher education providers despite multiple enrolments, the Tribunal gives his concerns little weight and considers the hardship to the applicant to be minimal.
The Tribunal notes that the applicant will become an unlawful non-citizen if his visa is cancelled and may be liable for detention under s189 and removal under s198 of the Migration Act if he does not voluntarily depart Australia. He will also be subject to an s48 bar which will limit his options in applying for further visas in Australia. The Tribunal notes that the applicant, if he were to apply for a further Student visa offshore, will be subject to Public Interest Criterion 4013 as a result of the cancellation and may not be granted a further Student visa for three years from this date. The Tribunal however also notes that if his visa is cancelled, the applicant may be eligible to apply for a Bridging Visa E to allow him to remain in Australia to finalise any outstanding matters and visa applications that have been lodged.
The Tribunal accepts that there will be some hardship caused to the applicant and his wife should his visa be cancelled. The Tribunal accepts that the cancellation will be disruptive to their relationship but notes that the applicant’s wife, as pointed out by the applicant, is also a Nepalese citizen in Australia on a temporary Student visa for the purposes of study. The option remains open to her to either return to Nepal with the applicant or remain in Australia to complete her studies. As for their desire to commence a family, similarly the applicant’s wife can depart Australia to reunite with the applicant when she wishes. The Tribunal accepts there is some emotional and financial cost to both the applicant and his wife should his visa be cancelled but it does not consider this to be particularly onerous to either party. On the evidence before it concerning the degree of hardship, the Tribunal weighs this factor in favour of cancelling the visa.
The Tribunal has considered the circumstances in which the ground for cancellation arose.
The applicant neither provided a response to the NOICC of the delegate nor provided written submissions to the Tribunal until his response on 14 June 2019 to the s359AA invitation at the hearing. The applicant raised a range of matters at his hearing and in writing to the Tribunal on 14 June 2019 as to the circumstances in which the ground for cancellation arose.
In his written response of 14 June 2019 to the Tribunal’s s359AA invitation to comment or respond, the applicant wrote about the failure of his first marriage and the corrosive impact this had upon his studies. He wrote that his then wife – who he claims to have married in 2013 – was unable to join him in Australia (she resided in Nepal) due to the fact his migration agent had not informed him that he needed to inform the Department of the marriage at the time of his visa application (T1, Folio.35). The applicant wrote that this long-term absence led to the deterioration of his marriage and ultimately divorce in 2016. This situation – the decline of his relationship and ultimately end of the relationship in divorce in 2016 – led to him becoming alone, depressed, unable to focus on his studies and ultimately failing to meet condition 8202 of his Student visa. He claims his personal situation worsened after his divorce in 2016.
The applicant in his oral testimony asserted to the Tribunal that he was a good student. He said his studies however faltered due to his divorce from his first wife in 2016. He talked about the challenges he had with the relationship and the problems which existed with his then wife unable to come to Australia to be with him. He said the decline of the relationship and the ultimate divorce in 2016 had a negative impact upon himself mentally and his ability to carry out his study obligations.
The applicant said his own family were not supportive of himself at this time. He claimed in oral evidence that his family had initially been supporting him with the payment of his student fees. He claimed however that his family, after seeing how depressed and alone he was after the end of his relationship with his first wife, decided to cease funding his studies in an attempt to encourage him to return to Nepal. The applicant did not however return to Nepal.
The Tribunal notes from the delegate’s decision and the PRISMS record of 14 March 2019 that the applicant’s MBA and his Master of Accounting enrolments were cancelled on the same date, 3 March 2016. The MBA was cancelled for non-commencement by the applicant of his course which was for a period of study in 2017. The applicant blamed the collapse of his first marriage for not commencing his studies in the MBA and said he was alone and depressed. The Tribunal asked the applicant about any treatment he received for his claimed anxiety and depression. The applicant said that he did see a doctor once (as discussed previously in this decision record) but had no corroborative evidence to support this claim.
The Tribunal asked the applicant if he had enrolled in higher education courses after his visa was cancelled. He said he could not due to his inability to gain a Certificate of Enrolment in a new course. He also intimated that he faced financial issues due to the decision of his family to no longer support him.
The Tribunal accepts that the applicant was stressed and felt some anxiety as a result of the inability of his new wife in Nepal to join him in Australia. The Tribunal notes the blame he places on the advice he allegedly received on bringing his wife to Australia from his migration agent, but notes that it was the responsibility ultimately of the applicant (and his then wife) to be aware of any visa requirements that might be relevant to his wife’s desire to come to Australia. The Tribunal furthermore notes that the applicant retained the ability to return to Nepal or elsewhere offshore to visit or spend time with his then wife during the 2013 to 2016 period. The Tribunal accepts that this was a challenging period for the applicant. The Tribunal does not however accept that this provides adequate justification for the applicant failing to remain enrolled in a course at the higher education level for almost a year at the time of the delegate’s decision. In the absence of any meaningful medical evidence the Tribunal is not satisfied that the applicant was suffering any significant degree of mental stress or health-related conditions that precluded him from studying and maintaining an enrolment.
The Tribunal notes that there is no corroborative evidence before the Tribunal that the applicant sought a deferral from his education providers due to the challenges he claims he was facing as a result of his marriage breakdown and his mental health. The applicant had an obligation to inform the Department when his circumstances changed – the applicant admitted however at the hearing he did not do so. He said he was using a migration agent and wasn’t sure what to do. At the hearing the Tribunal asked the applicant whether he was aware that a condition of his visa was that he remain enrolled in a registered course at the higher education level. The applicant claimed again that he relied on his migration agent and had no one to guide him. He said he was mentally ‘too broken’ at that time. The Tribunal on the evidence before it does not accept this as a plausible explanation. The Tribunal, whilst acknowledging the applicant naturally faced some hardship during and at the end of his relationship with his first wife, gives little weight to his claims, on the evidence before it, that he lacked the requisite mental health to deal with his study and enrolment obligations. The Tribunal at the hearing asked the applicant if he received a letter from the Department after being granted the visa and whether the letter outlined the conditions of his visa and the consequences of non-compliance. The applicant admitted that he did and furthermore agreed that he was aware when his enrolment had ceased and the impact this would have upon his eligibility to continue to hold his visa.
Even if the Tribunal accepted the applicant’s arguments concerning his reliance on his migration agent, the Tribunal nevertheless notes that the responsibility for remaining compliant with the requirements of his Student remains with the applicant. The Tribunal notes the obligation remains with the applicant to ensure he is aware of and meets the conditions of his visa. The applicant failed to maintain an enrolment in a registered course as required by the conditions on his visa for a significant period of time. The Tribunal notes that the applicant has held a Student visa previously before the one that was cancelled and is of the view the applicant by 2017 was fairly familiar with the visa process, the imposition of conditions and the potential consequences of non-compliance. On the evidence before it the Tribunal is not convinced the applicant was unaware of his obligations and specifically his ongoing enrolment requirements as the holder of a Student visa.
Similarly the Tribunal does not accept the applicant’s submission that his then migration agent’s allegedly deficient advice somehow bears responsibility for the breakdown of his first marriage and subsequently his mental state that led to him failing to maintain his enrolment. The responsibility for being aware of the requirements and restrictions governing any visa application for his then wife rested with both herself and the applicant at the time.
The applicant has blamed his inability to enrol in a higher education course of study since his cancellation in 2017 on the fact his visa had been cancelled by the Department. He has stated he has been unable to obtain a Confirmation of Enrolment from any education providers. The Tribunal accepts that obtaining a new CoE can sometimes be challenging after the cancellation of a Student visa. The Tribunal nevertheless notes that the applicant has not provided the Tribunal with any corroborative evidence of any attempts he has made to obtain a CoE in the two and a quarter years since the cancellation of his visa and the cancellation of his enrolment in his MBA. The Tribunal gives the claim little positive weight.
The applicant’s visa was cancelled because he did not maintain enrolment in a registered course of study at the higher education level. The Tribunal notes the paucity of evidence before it from the applicant explaining from his perspective the circumstances in which the ground of cancellation arose. The oral and written testimony of the applicant – and his essentially unsubstantiated claims concerning the breakdown of his relationship with his first wife and the subsequent impact of these events on his mental health and his ability to maintain his enrolment – provides the Tribunal with a frankly inadequate explanation and justification from the applicant’s perspective as to the circumstances in which the ground for the cancellation of his visa arose. The Tribunal has considered the circumstances in which the grounds for cancellation arose and the applicant’s explanation of these circumstances and his attempts to mitigate them. The Tribunal weights this factor strongly in favour of cancelling the visa.
The Tribunal has considered the past and present behaviour of the applicant towards the Department. The Tribunal pointed out to the applicant that he had obligations to inform the Department when his circumstances, such as his enrolment, changed. On the evidence before it the applicant failed to do so. The Tribunal notes the applicant’s assertions that he had a migration agent and the inference that the agent should take some responsibility for his failure to comply with the conditions of his visa. The Tribunal nevertheless notes that the applicant appears to have little regard for process and responding to requests for information in relation to his visa. The Tribunal notes that the applicant failed to respond to the Department’s NOICC which led to the cancellation of his Student visa. The applicant said he communicated with the Department by visiting them in person after he received notification that his visa was cancelled but again, there is no corroborative evidence before the Tribunal to confirm this. There is no other evidence before the Tribunal concerning the applicant’s previous and present behaviour towards the Department in favour or against cancelling the visa. The Tribunal weighs this factor neither in favour nor against cancelling the visa.
The Tribunal has considered whether there are persons in Australia whose visas would, or may be, cancelled under s140 as a result of the cancellation of the applicant’s visa. The applicant at the hearing confirmed that no one else currently holds a visa because of his Student visa. The Tribunal notes the applicant is married but his wife holds her own Student visa. The applicant says he has no children. There is no evidence or claim made of dependents. On the evidence there is none else holding a visa because of his 573 visa. Therefore any cancellation of the applicant’s student visa will not result in the automatic consequential cancellation of the visa of any other person under s140 of the Migration Act. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.

The Tribunal has considered whether there are 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 of the applicant’s visa. There is no information before the Tribunal which indicates that any cancellation would result in any breach of Australia’s international obligations. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.
On the evidence before it the Tribunal considers the applicant’s breach of condition 8202 of their student visa to be substantial. The Tribunal considers the initial almost year-long period the applicant failed to remain enrolled in a registered course of study to be significant. Well over two years have elapsed since that time and the applicant continues to lack an enrolment in any registered course of study, notwithstanding his claims that he attempted to gain a CoE but could not do so because of his visa cancellation. The Tribunal has noted the applicant’s oral evidence concerning his failure to meet the conditions of his visa and his explanation concerning the circumstances of the breach. The Tribunal has carefully considered and has some sympathy for the applicant and his current wife. Nevertheless the Tribunal does not consider these factors in any significant way constitute a reason for the Tribunal not to exercise its discretion to cancel the visa.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
Justin Owen
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.

[2019] AATA 3971

19 June 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Jurisdiction

Breach