Bhusal (Migration)

[2017] AATA 972

Bhusal (Migration) [2017] AATA 972 (13 June 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Shankar Bhusal
Mrs Saraswati Pantha Bhusal
Mr Sashank Bhusal

CASE NUMBER:  1614385

DIBP REFERENCE(S):  BCC2016/1622722

MEMBER:Glen Cranwell

DATE:13 June 2017

PLACE OF DECISION:  Brisbane

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

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 13 June 2017 at 9:20am

CATCHWORDS

Migration – Cancellation – Student Class TU visa – Subclass 573 Higher Education Sector – Enrolment in registered course – 6 month holiday from course – No evidence of fee payment – Financial difficulties – Pursued 457 sponsorship

LEGISLATION

Migration Act 1958, ss 116(1)(b), 140(1), 348
        Migration Regulations 1994, Schedule 8, Condition 8202, r 2.43(1)(la)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 30 August 2016 made by a delegate of the Minister for Immigration to cancel the first named 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 first named applicant (the applicant) had breached condition 8202. 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. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicants.

4. The applicants appeared before the Tribunal on 7 June 2017 to give evidence and present arguments. 

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations). If the applicant has breached that condition, under s.116(1) of the Act, the visa may be cancelled.

   Did the applicant comply with Condition 8202?

7. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:

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

   ·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 the applicant was not enrolled in a registered course.

9. The applicant provided the Tribunal with a copy of the delegate’s decision.  This records that the PRISMS database indicated that the applicant has not been enrolled in a registered course of study since 27 April 2015.

10. At the hearing, the applicant did not agree that he was not enrolled in a registered course of study.  He stated that he had been on a 6 month holiday from his course.  He was trying to get sponsorship for a Subclass 457 visa.  He gave his course fees to his agent, but his agent did not pay them to the college.  His agent also did not tell him that his confirmation of enrolment was cancelled.

11. The Tribunal finds that the applicant has not been enrolled in a registered course of study since 27 April 2015.  Despite the applicant not agreeing with this at the hearing, the applicant nevertheless told the Tribunal that he had not studied for 6 months and that his confirmation of enrolment had been cancelled.  This suggests that, for whatever reason, the applicant ceased to be enrolled in a registered course.

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

    Consideration of the discretion to cancel the visa

13. 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.

14. 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 visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

15. The applicant told the Tribunal that he came to Australia to study.

    The extent of compliance with visa conditions

16. The Tribunal has found that the applicant has not complied with condition 8202(2) since 27 April 2015.  There is no evidence before the Tribunal to suggest that the applicant has not complied with other visa conditions.

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

17. The applicant stated that he has spent the last 7 or 8 years in Australia.  He has spent $70,000 to $80,000 on his studies.  His wife and child (the second and third named applicants) are with him in Australia.  If he does not complete a bachelor degree, it will be hard for him to get a good job in Nepal.  He has a bright life ahead of him in Australia.

    The circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

18. The applicant stated that he got a job offer to work in a restaurant.  He was asked to work for 1 to 2 months as a trial.  He hoped to obtain a Subclass 457 visa.  His college enrolment was due.  He paid the fee of $2,800 to his agent, but his agent did not pay the money to the college.

19. The Tribunal asked the applicant for evidence that he paid the fee to his agent.  The applicant stated that his bank account had been closed since he could not pay the minimum bill on his credit card.  He does not have access to his online bank statements.  The Tribunal gave the applicant until 5 pm on 9 June 2017 to visit a bank branch and obtain a paper statement or other evidence that he had paid the fee to his agent.  The Tribunal noted that it might not accept that the fee was paid to his agent if he was unable provide such evidence.  The applicant subsequently provided the Tribunal with a text message dated 8 September (year not stated) advising that his fees were due to be paid to Holmes Institute the following day.  This indicates only that the applicant was asked to pay his course fees, not that he disbursed funds to his agent for payment to the college, and the Tribunal does not accept that he did.

20. The Tribunal referred to the applicant’s email to the Department dated 5 August 2016, in which he stated:

    [I]t was very hard for me to finish this course.  Within that time frame my wife was pregnant and we got a baby boy and because of that it was very hard to give concern in my study.

21. The applicant stated that he was experiencing financial difficulty following the birth of his child.  It was hard to study and work.  He thought it would be better to go on a Subclass 457 visa.

22. The Tribunal asked the applicant whether he was in a position to recommence studies, given that his bank account had been closed due to non-payment of his credit card fee.  The applicant stated that he might need to ask for money from Nepal.

23. The Tribunal does not accept that the ground for cancellation arose due to circumstances beyond the applicant’s control.  The Tribunal considers that the applicant decided to abandon his studies and pursue sponsorship for a Subclass 457 visa.  The Tribunal has not accepted that the applicant’s agent failed to pay his course fees.  While the applicant may have been experiencing financial hardship, it is a requirement for the grant of a student visa that an applicant have the financial capacity to fund his or her study and living expenses.

    Past and present conduct of the visa holder towards the department

24. There is no evidence that the applicant had been uncooperative towards the Department.

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

25. This is not a relevant consideration.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

26. The applicant agreed that he has limited options to apply for further visas in Australia.  He may be subject to a 3 year exclusion period in relation to offshore applications. 

    Whether there would be consequential cancellations under s.140

27. The visas of the second and third named applicants were cancelled under s.140.

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

28. The Tribunal put to the applicant that his child (the third named applicant) was in Australia on a temporary visa, and would at some point be required to return to Nepal.  The third named applicant would not be separated from his parents, as the visas of the applicant and the second named applicant were also cancelled.  They would be able to return to Nepal as a family unit.

29. The applicant stated that it is not a big issue, but if he got permanent residence then his child would have a better life in Australia.

30. The Tribunal does not accept that cancellation of the applicant’s student visa would lead to removal in breach of Australia’s non-refoulement obligations or that any other relevant international agreements would be breached as a result of cancellation of the applicant’s student visa.

    Any other relevant matters.

31. Following the hearing, the applicant provided an offer letter and confirmation of enrolment from Hannay International College, for a Diploma of Hospitality Management to commence on 3 July 2017.  As noted at the hearing, the applicant’s bank account has been closed due to non-payment of his credit card bill, and the Tribunal has no evidence before it to indicate that the applicant has access to the funds (whether from Nepal or elsewhere) necessary to recommence studies.

32. Having considered the evidence, the Tribunal finds that the factors weighing in favour of not cancelling the applicant’s visa are significantly outweighed by the circumstances in which the ground for cancellation arose.  Significantly, the Tribunal has not accepted the applicant’s explanation as to how the ground of cancellation arose.  The Tribunal also has not accepted that the applicant would be in a financial position to resume studying if his visa were reinstated.  As the purpose of a student visa is to study, there appears to be little point in setting aside the cancellation of the applicant’s visa in those circumstances.  Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

33. The Tribunal affirms the decision to cancel the first named applicant’s Class TU visa. The Tribunal has no jurisdiction with respect to the other applicants.

    Glen Cranwell
    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.