Bhatta (Migration)

[2024] AATA 1928

Bhatta (Migration) [2024] AATA 1928 (7 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Daniel Bhatta

CASE NUMBER:  2217194

HOME AFFAIRS REFERENCE(S):          BCC2022/2195835

MEMBER:David McCulloch

DATE:7 June 2024

PLACE OF DECISION:  Sydney

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

Statement made on 07 June 2024 at 2:44pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered course – applicant ceased enrolment – limited academic progress – financial hardship – multiple course cancellations – decision under review affirmed        

LEGISLATION

Migration Act 1958, ss 116, 140
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 made by a delegate of the Minister for Home Affairs on 16 November 2022 to cancel the applicant’s Subclass 500 (Student) visa under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a citizen of Nepal. The visa that was cancelled was granted on 19 May 2019.

3. The delegate cancelled the visa on the basis that the applicant was not enrolled in a registered course. 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 29 April 2024 at 9.30 am to give evidence and present arguments. The applicant was in Tasmania and the Tribunal Member in Sydney. The Tribunal was held with the applicant appearing by video using Microsoft Teams.

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 (Cth) (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 full-time registered course: 8202(2)(a)

   ·maintain enrolment in a registered course that 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)(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 full-time registered course.

9. The applicant has provided to the Tribunal a copy of the delegate’s decision. That decision indicates that the Provider Registration and International Student Management System (PRISMS) indicates that the applicant has not been enrolled in a registered course since 18 August 2020 and therefore has not complied with the requirements of subclause 2(a) of condition 8202.

10. On 23 August 2022 the applicant was sent a Notice of Intention to Consider Cancellation (NOICC) of the visa based on it appearing that he was not enrolled in a registered course since 18 August 2020.

11. The applicant provided a written response from which the Tribunal notes the following. The applicant appears to acknowledge that he has breached a condition of his visa. He indicated that he has since been able to enrol himself in a course. The applicant attached a Confirmation of Enrolment created on 5 September 2022 in a Certificate IV in Commercial Cookery due to commence on 10 October 2022. The applicant also attached a Confirmation of Enrolment in a Diploma of Hospitality Management due to commence on 8 April 2024.

12. The Tribunal put to the applicant in the hearing that it appears he accepts that he was not enrolled in a registered course from 18 August 2020 until 5 September 2022. In response, the applicant acknowledged that he was not enrolled in a registered course for this period.

13. On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course. Accordingly, the applicant has not complied with condition 8202(2)(a).

    Consideration of the discretion to cancel the visa

14. 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 Procedural Instruction ‘General visa cancellation powers’. These matters include: the purpose of the visa holder's travel to and stay in Australia; compelling reasons to remain in Australia; the extent of compliance with visa conditions; the degree of hardship that may be caused to the visa holder and any family members; the circumstances in which the ground for cancellation arose – whether there are extenuating circumstances beyond the visa holder's control; the visa holder's past and present behaviour towards the Department; whether there are any persons in Australia whose visas would or may be cancelled under s 140 (i.e. consequential cancellation); whether there are mandatory legal consequences to the decision (whether indefinite detention is a possible consequence in light of any non-refoulement obligations); provisions in the Act which prevent the person making a valid application without the intervention of the Minister; whether the person would become an unlawful non-citizen (and liable to be detained upon cancellation); whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation; the impact on children of the cancellation; whether the cancellation would lead to removal in breach of Australia's non-refoulement obligations; and any other relevant matters.

15. In the applicant’s written response to the NOICC he provided the following explanations for his non-enrolment. The applicant indicated that due to poor academic progress and mental frustration he was unable to cope with life in Sydney. Hence, he moved to Tasmania where he has felt much better mentally and socially. In the process, he took a while to obtain enrolment, which put his visa in danger. The applicant indicated that the cookery program he was enrolled in in Sydney was much more intense than he predicted and he was ill-prepared mentally for the course. He lost his concentration and was unable to perform as expected. He became depressed and saddened because he was unable to achieve his study goals. The applicant decided to move to Tasmania. He refers to the enrolments he has obtained in Tasmania in a Certificate IV in Commercial Cookery and a Diploma of Hospitality Management. He is motivated to finishing these courses. Working in the kitchen gives the applicant much satisfaction. The industry is growing rapidly in Nepal. The applicant, with the support of the College, will complete the degree in time.

16. In the hearing the applicant confirmed that he had been in Australia since early 2015 on student visas. The applicant initially lived in Tasmania before moving to Sydney where he lived and studied then returning to Tasmania in early 2021.

17. The Tribunal had written to the applicant in advance of the hearing requesting evidence of courses passed and in courses commenced and not completed, evidence of units passed from course transcripts. The applicant did not provide any evidence.

18. In the hearing, the applicant indicated 12 units passed in one course undertaken. The applicant also referred to one or two units passed in a cookery course. The applicant indicated that after the hearing he would seek to obtain evidence of this and provide it to the Tribunal.

19. After the hearing the applicant indicated in writing that as he not pass any units in certain courses and the relevant education providers could not provide transcripts. The applicant indicated that he had made enquiries of two other institutions but transcripts had not been provided and he would update the Tribunal. The Tribunal wrote to the applicant on 21 May 2024 giving him until 5 June 2024 to provide evidence of units passed. The Tribunal indicated that after this date it would assume in the absence of evidence provided that the applicant had passed no units. No response was provided.

20. The Tribunal asked the applicant in the hearing for explanations as to why he allowed himself to not be enrolled in a registered course from August 2020 until September 2022, a period of more than two years. In response, the applicant indicated that after he moved to Tasmania in early 2021 he requested his agent to take steps to enrol him in a registered course. The applicant indicated that his agent told him that this was not possible because he already had valid Confirmation of Enrolments in other courses. Upon exploration, the applicant’s evidence was that these enrolments were a Certificate IV in Information Technology Networking, followed by a Diploma of Telecommunications Networking, followed by an Advanced Diploma of Telecommunications Network Engineering.

21. The applicant indicated that he believes he has evidence from the migration agent indicating that the agent could not obtain enrolment for these reasons. The applicant indicated that he would seek to provide this information to the Tribunal after the hearing.

22. The Tribunal put to the applicant that it does not make sense that the agent would say that these were current enrolments in early 2021 because the government study records of the applicant indicated that all of these courses were cancelled on 25 September 2019 for non-payment of fees for the first enrolment and on commencement of studies for the second and third enrolments.

23. After the hearing the applicant provided what appears to be an email from the applicant’s migration agent dated 11 March 2021 indicating that the applicant already has a valid Confirmation of Enrolment form Abbey College and that without a release letter from them in the applicant is not able to enrolled in another course.

24. The applicant also provided correspondence from Abbey College dated 22 March 2021 indicating that the applicant’s enrolments were cancelled on 25 September 2019 for non-payment of fees.  The email provides a form to fill out and indicates the payment of $250 fee along with the letter of offer ­ in the course the applicant wants to enrol in.

25. The Tribunal put to the applicant in the hearing that surely he must have realised that he was not complying with obligations in relation to his student visa if he moved to Tasmania in early 2021 and remained living there without undertaking any study for a period of more than 18 months before receiving the NOICC.

26. The Tribunal asked the applicant in the hearing if he is claiming that there are extenuating circumstances beyond his control justifying why he was not enrolled in a registered course for more than two years. In response, the applicant indicated that he was negligent and that he does have responsibility for the non-enrolment.

27. The Tribunal put to the applicant that given that concession it is considerably adverse to the applicant that he allowed himself not to be enrolled in a registered course for the significant period that he was not so enrolled.

28. The Tribunal acknowledges that the applicant was informed in March 2021 by his migration agent that he had a valid Confirmation of Enrolment preventing him enrolling in another course. This is exculpatory as to nonenrolment to some degree. However, within two weeks the applicant had advice from the relevant education provider that is enrolment had been cancelled, and providing a form with the payment of a fee to facilitate the ability to enrol in another course.

29. However, the applicant did not take the necessary steps to enrol in a registered course until September 2022.

30. The Tribunal is not satisfied that there are extenuating circumstances beyond the applicant’s control that explain this nonenrolment for a period of approximately 18 months. The nonenrolment for this significant length of time without exculpatory factors is significantly adverse to the applicant an exercise for the Tribunal’s discretion.

31. In the hearing, the applicant indicated that he did pass some units in the Certificate IV in Commercial Cookery that commenced on 10 October 2022 in Tasmania. The applicant indicated that he is no longer able to study this course as he was not able to provide the institution with evidence of having an appropriate visa. The applicant did not provide evidence after the hearing that would indicate him passing any units in this course.

32. The applicant indicated that his intention if the visa is reinstated is to continue to study the Certificate IV in Commercial Cookery. The applicant indicated that his inability to continue to study this course would be a key hardship if the visa remains cancelled.

33. The applicant indicated that the other hardship is the fact that if the applicant has to return to Nepal he will not be able to send money from employment in Australia back to his family, who rely on him. The applicant referred to his mother being unwell.

34. The applicant did not provide evidence of any other hardships if the visa remains cancelled.

35. In terms of the applicant’s study history in Australia, since being in Australia since early 2015 the applicant has not passed one of the many registered courses that he has been enrolled in. Despite multiple opportunities the applicant has not provided evidence of passing any unit in any course in which he was enrolled. This extremely poor study history is significantly adverse to the applicant in the exercise of the Tribunal’s discretion.

36. The applicant has a very poor study history in terms of his many years in Australia. This undermines the applicant’s evidence that he has a serious intention to study and the degree of hardship he claims as a result of not being able to continue with the Certificate IV in Commercial Cookery if the visa remains cancelled.

37. The Tribunal accepts that it may be a perceived hardship to the applicant and his family in Nepal if the applicant is not able to remain in Australia to work to send funds back to his family. However, the student visa is not designed for the purpose of employment in Australia to facilitate the economic welfare of an applicant or their family. This is not hardship that is considered significant in terms of the Tribunal not exercising its discretion to cancel the visa.

38. Thus, the Tribunal considers that there are not significant hardships for the applicant if the visa remains cancelled apart from wanting to stay in Australia to make a better life for him and his family.

39. The Tribunal asked the applicant if he fears serious or significant harm on return to Nepal. On questioning the Tribunal asked the applicant if he is claiming harm in his home county to an extent that he might be classed as a refugee. In response, the applicant indicated that the economic situation in Nepal is problematic as well as being more dangerous. The applicant indicated that he might think about applying for a protection visa.

40. It was clear from the applicant’s responses to this questioning in the hearing that he had not previously thought significantly about or taken steps to apply for a protection visa. The Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm on return to Nepal that may entitle him to a protection visa.

41. The Tribunal is therefore not satisfied that Australia’s non-refoulment obligations are a relevant discretionary factor in his favour. If there is a requisite risk to the applicant, he has the option to apply for a protection visa.

42. In the hearing, the applicant indicated that there are no children in Australia whose interests are affected by any cancellation of the applicant’s visa.

43. The Tribunal weighs discretionary factors. The fact that the Tribunal does not accept that there are extenuating circumstances explaining the long period of non-enrolment and the applicant’s extremely poor study history in Australia are cumulatively overwhelmingly adverse to the applicant in the exercise of the Tribunal’s discretion. These adverse matters are not anywhere near outweighed by any hardship that the applicant would suffer as a result of the visa remaining cancelled or any other discretionary factors in his favour.

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

    DECISION

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

    David McCulloch
    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.