BISTA (Migration)

[2019] AATA 6646

BISTA (Migration) [2019] AATA 6646 (29 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr UTSAV BISTA

CASE NUMBER:  1712111

HOME AFFAIRS REFERENCE(S):          BCC2017/1111026

MEMBER:Lynda Young

DATE:29 November 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 29 November 2019 at 3:51pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered course – limited academic progress – disruption caused by the Nepal earthquake – family financial hardship – applicant changed to Vocational course – Music course not available in Nepal – grounds for cancellation partially beyond the applicant’s control – decision under review set aside

LEGISLATION

Migration Act 1958, ss 36, 116

Migration Regulations 1994, Schedule 2, Schedule 8 Conditions 8202, 8516

CASES

COT15 v MIBP (No 1) (2015) 236 FCR 148

Ibrahim v MHA [2019] FCAFC 89

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 31 May 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).

2. The applicant’s visa, granted on 20 January 2015, was subject to condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations), requiring the applicant to be enrolled in a registered course of study.

3. On 5 May 2017, under s. 119 of the Act, the applicant was issued a Notice of Intention to Consider Cancellation (NOICC) of his visa as it appeared he had not complied with visa condition 8202(2)(a) as there was evidence in the Provider Registration and International Student Management System (PRISMS) that the applicant had not been enrolled in a registered course of study since 18 April 2016. The applicant responded to the NOICC by providing a ‘submission’ and supporting documents to the Department by email on 18 and 19 May 2017.

4. On 31 May 2017, the delegate cancelled the visa under s. 116(1)(b) of the Act on the basis there was, by reason of the applicant’s failure to comply with visa condition 8202(2)(a) by not being enrolled in a registered course of study since 18 April 2016, a ground for cancellation, and the reasons for cancelling the visa outweighed the reasons for not cancelling the visa.

5.    The applicant applied to the Tribunal for review of the decision on 7 June 2017, and attached to his application a copy of the Notice of Cancellation and the Decision Record (application). The issues in the present case are whether the ground for cancellation in s.116(1)(b) of the Act is made out, and if it is, whether the Tribunal should exercise the discretion to cancel the visa.

6.    The applicant appeared before the Tribunal on 15 July 2019 to give evidence and present arguments. The applicant was represented in relation to his application for review, however his representative did not attend the hearing

7.    For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

CONSIDERATION OF CLAIMS AND EVIDENCE

ISSUES

8. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(b).

9. Section 116(1)(b) provides for cancellation of a visa where ‘its holder has not complied with a condition of the visa.’ Visa conditions for each subclass are identified in the relevant part of Schedule 2 to the Regulations, and described in Schedule 8 to the Regulations.

1. In this case, condition 8202 was imposed on the applicant’s student visa.

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

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

   b.has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and

   c.has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).

3. If satisfied the ground for cancellation in s.116(1)(b) is made out then, as the ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa, having regard to matters specified in the Act or regulations that are required to be considered and all information relevant to the exercise of the discretion in the circumstances of the case, including matters raised by the applicant and matters of government policy.

4. There are no matters specified in the Act or the Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. Matters to which the Tribunal has regard in considering whether to exercise its discretion to cancel the applicant’s visa include matters raised by the applicant and the matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, including:

   a.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;

   b.the extent of compliance with visa conditions;

   c.degree of hardship that may be caused (financial, psychological, emotional or other hardship);

   d.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;

   e.past and present behaviour of the visa holder towards the department;

   f.whether there would be consequential cancellations under s.140;

   g.whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable 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;

   h.whether 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;

   i.if it is a permanent visa, whether the former visa holder has strong family, business or other ties in Australia;

   j.any other relevant matters.

5. The issues for the Tribunal’s determination in this case are:

   a.does the ground for cancellation in s.116(1)(b) of the Act exist?

   b.if the ground for cancellation in s.116(1)(b) of the Act exists, should the discretion to cancel the visa be exercised?

EVIDENCE ON THE APPLICATION

1. The evidence before the Tribunal on this application comprises:

   a.documents on the Department’s cancellation file, relevantly, the NOICC and the applicant’s response to the NOICC provided to the Department by email on 18 May 2017 attaching supporting documents, and on 19 May 2017.  Attached to the applicant’s 18 May 2017 email were:

   i.a translated copy of a Residence Reconstruction Subsidy Agreement Paper issued by the Government of Nepal, National Reconstruction Authority;

   ii.a translated copy of a Nepali Citizenship Certificate in the name of Uddhab Bista (the applicant’s father).

   iii.a translated copy of a Building Construction Permit-License;

   iv.Confirmation of Enrolment (CoE) 8CFACC50, dated 11 May 2017, for enrolment at Australian Harbour International College in Diploma of Business, course start date 29 May 2017, completing 27 May 2018;

   v.unsigned Conditional International Student Offer and Acceptance Agreement dated 24 April 2017, at Asia Pacific International College, to study a Bachelor of Business Information System, course start date 18 June 2018, completing 22 May 2020. The offer was issued conditional upon receiving evidence of activities post January 2015 and successful completion of the applicant’s Diploma of Business at ECA College demonstrating results which meet APIC Foundation entry requirements;

   vi.applicant’s ‘document of my reasons’ letter dated 17 May 2017;

   b.the application, including the attached Notice of Cancellation and the Decision Record;

   c.documents submitted at hearing, comprising:

   i.CoE Certificate 626AC237, dated 21 January 2014, for enrolment at University of Technology Sydney in Academic English (Intermediate to Advanced), course start date 17 February 2014, completing 25 April 2014;

   ii.CoE 626AD279, dated 21 January 2014, for enrolment at University of Technology Sydney in Diploma of Information Management, course start date 27 May 2014, completing 22 May 2015;

   iii.CoE 62B86489, dated 29 January 2014, for enrolment at University of Technology Sydney in Bachelor of Science and Information Technology, course start date 20 July 2015, completing 30 June 2017;

   iv.CoE 6D0A3F74, dated 4 December 2014, for enrolment at University of Technology Sydney in Diploma of Information Technology, course start date 10 February 2015, completing 27 May 2016;

   v.applicant’s submission ‘Reasons for changing college’, undated;

   vi.translated document titled ‘Earthquake Victim Residence Reconstruction Record Collection Program’;

   vii.letter from UTS Insearch to the applicant dated 24 June 2015, re ‘Outcome of Application for a Release Letter’;

   viii.CoE 746C9499, dated 14 July 2015, for enrolment at Wells International College Sydney in Diploma of Software Development, course start date 21 September 2015, completing 27 August 2016;

   ix.applicant’s submission titled ‘mentally disturbed’, undated;

   x.emails between the applicant and Wells International College Sydney between 18 May 2016 and 23 March 2017;

   xi.applicant’s submission titled ‘Got mail from visa cancellation’, undated;

   xii.CoE 8CFACC50, dated 11 May 2017, for enrolment at Australian Harbour International College in Diploma of Business, course start date 29 May 2017, completing 27 May 2018;

   xiii.applicant’s submission titled ‘Applied abroad to study music’, undated;

   xiv.letter from SSR to applicant dated 17 May 2017, confirming the applicant’s place in the Music Production and Sound Engineering course, commencing September 2018;

   xv.CoE 9CF14F62, dated 11 May 2017, for enrolment at Skyline International College in Diploma of Leadership and Management, course start date 16 July 2018, completing 14 July 2019;

   xvi.applicant’s submission titled ‘Got chance to study music in TAFE Ultimo NSW’, undated;

   xvii.TAFE NSW Fee Statement dated 6 December 2018, for Diploma of Music Industry;

   xviii.TAFE Withdrawal Application Form requesting deferment of studies to ‘next intake’, dated 20 February 2019;

   xix.TAFE VET Student Loan Fee Notice addressed to the applicant, dated 11 July 2019, noting the applicant as enrolled in a Diploma of Music Industry;

   xx.TAFE NSW Tax Invoice and payment receipt, dated 12 July 2019;

   xxi.screenshot of a Spotify playlist titled ‘Namaste’;

   xxii.screenshot of SoundCloud website;

   xxiii.applicant’s submission, untitled and undated;

   d.the applicant’s evidence at hearing;

   e.the applicant’s post-hearing submissions received by the Tribunal on 4 August 2019, comprising;

   i.emails between the applicant and JMC Academy 23 July and 2 August 2019;

   ii.emails between the applicant and TAFE NSW dated 18 July 2019;

   iii.letter from TAFE NSW International to the applicant dated 18 July 2019, notifying the applicant his responses to the Genuine Temporary Entrant section of the application form were reviewed and assessed in line with the requirements of Ministerial Direction No 69 and, as a result of the assessment process TAFE NSW was not satisfied that the applicant net those requirements and it was likely the applicant’s student visa application would be rejected. On that basis, TAFE deemed his application as unsuccessful at that stage.

   iv.applicant’s submission titled ‘Reason for not holding current COE’, undated;

   v.dental certificate dated 21 March 2018;

   vi.St George Hospital Discharge Referral Note for a third party, dated 19 December 2018;

   vii.Various prescriptions;

   viii.Medical certificate dated 7 February 2019;

   ix.St Vincent’s Pathology reports dated 18 April 2015;

   x.Sickness certificate dated 17 April 2015;

   f.the applicant’s post hearing submissions received by the Tribunal on 5 August 2019, comprising:

   i.copies of document’s previously submitted to the Tribunal;

   ii.Spirit Studios letter to the applicant confirming his place on the Music Production and Sound Engineering course, commencing September 2019, dated 25 March 2019.

The NOICC

1. The Department’s NOICC issued 5 May 2017, notified the applicant it intended considering cancellation of his visa based on PRISMS evidence from which it appeared he had not been enrolled in a registered course of study since 18 April 2016, possibly breaching visa condition 8202(2)(a). The applicant was invited to provide his written response to the NOICC within five working days, addressing the identified ground(s) for cancellation, reasons why his visa should not be cancelled, the matters the delegate would take into account in considering whether to cancel his visa, being those matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, and any other matter he considered relevant.

The Applicant’s “Submission” dated 17 May 2017

1. In his ‘submission’ dated 17 May 2017, responding to the NOICC, the applicant stated:

   “I came to Australia in 2015 to study at UTS: Insearch and UTS. After a few months I landed in Australia, Nepal faced a massive earthquake. As a result of this, my house was destroyed completely and my parents got severely injured (please see attached document for this). This circumstance led me to seek some extension to pay my next term dee but it got refused. I then applied for a letter of release, giving all the reasons but it got refused and my COE got cancelled.

   Although I was studying very well at UTS, my parents financial difficulties brought about by the Earthquake forced me to leave UTS. I was so embarrassed that I did not tell my parents anything about it and at some point I wanted to go back to Nepal but did not thinking this would add to the suffer my parents  were going through.

   Knowing that my COE got cancelled and that my parents are not in a situation to support me financially, I opted for a diploma course at WIC. Due to family problems and the feeling of losing the chance to study at a very good university I went into depression and it stated taking a toll on my study. Due to not being able to focus on my study, once again the COE got cancelled. After this incident, I could not think of anything during this time. I was like out of mind. I was about to go Nepal but after a discussion with my parents, they told me that I have come to Australia to get a degree and should complete it. Then, I composed myself and reapplied at WIC but only to be told that I could not enrol.

   I am not starting Diploma of Business from May 29 2017 at AHIC and Bachelor Degree at APIC from June 2018. I know I have breached some conditions in the past but it was beyond my control. I am now focused and my parents are also in a stable condition which means they can support me financially.

   I therefore request that I be given a chance this time to pursue my study.”

The applicant’s “submission” dated 19 May 2017

1. In his further “submission” dated 19 May 2017, responding to the NOICC, the applicant stated:

   “Please consider my application. I’m begging you. Everyone deserve second chance. My parents are expecting something good from me. Please give me a second chance and I won’t let you down. If you do so, you owe my life. Please sir/madam consider my application and guide me ahead.”

The Decision

1. The Decision Record sets out, relevantly, in summary:

   a.The applicant was granted a Student (Temporary) (Class TU) Higher Education Sector (subclass 573) visa on 20 January 2015;

   b.The Department’s NOICC issued on 5 May 2017 on the basis of PRISMS evidence that the applicant was not enrolled in a registered course of study since 18 April 2016;

   c.The applicant in his response to the NOICC, provided reasons why the visa should not be cancelled. However did not dispute that there are grounds for cancellation;

   d.The applicant stated that his intended purpose to travel to and stay in Australia was to study;

   e.There was no evidence the applicant had been non-compliant with visa conditions other than condition 8202;

   f.The delegate accepted the applicant, if his visa were cancelled:

   i.May be caused some hardship on being required to depart Australia, but may be eligible for a Bridging Visa E, providing time for him to finalise any outstanding matters;

   ii.If he did not voluntarily depart Australia, would become an unlawful non-citizen and be liable for detention under s. 189 and removal under s. 198 of the Act

   iii.Would be subject to s. 48 of the Act which means that he will have limited options to apply for further visas in Australia;

   iv.Would be subject to Public Interest Criterion 4013, and may not be granted a temporary visa for three years;

   g.The delegate took into account the applicant’s responses to the NOICC, however made the following findings;

   i.The delegate gave some weight against cancellation for the applicant’s family circumstances and financial hardship. However, the delegate noted that a condition of a subclass 573 visa is that the visa holder must continue to have sufficient financial capacity to support their study and stay in Australia;

   ii.The delegate gave some weight against cancellation to the applicant’s claim that he could not enrol in a registered course of study due to the disruption caused by the earthquake. However, the delegate noted that the applicant was unenrolled for a cumulative period in excess of twelve months, giving him a significant period of time to resolve his enrolment status;

   iii.The delegate gave little weight to the applicant’s other claims. The delegate noted that the applicant enrolled in a Diploma of Business course (COE 8CFACC50), however the delegate was not satisfied that the applicant demonstrated his intention to study, given his COE was issued after the NOICC. Further, the applicant was not enrolled in a principal course required by his TU573 visa;

   h.Overall, the delegate found that the applicant’s response did not mitigate the visa breach and the applicant’s explanation of the circumstances in which the grounds for cancellation arose did not provide reason to not cancel the visa;

   i.There was no evidence the applicant had been uncooperative with the Department;

   j.Cancellation of the visa would not result in the automatic consequential cancellation of any dependant visa holders;

   k.The circumstances of the applicant’s case were not such that would engage Australia’s international obligation and cancellation of the visa would not lead to a breach of Australia’s international obligations;

   l.The delegate was satisfied the grounds for cancelling the visa outweigh the grounds for not cancelling the visa.

Applicant’s “Submissions” Received at Hearing

1. The applicant submitted a document at hearing, untitled and undated. The document reads:

   “Everything what happened to me is my fate. I had no intention to breach my study law in Australia. I just want to see my parents, as I am their only child. Now my family financial situation is good. They can afford my education now. Please I’m begging you to understand my situation. Natural disaster can happen anytime anywhere it’s not a human being fault. Please allow me one more chance to stay on student visa and study for 1 year and prove myself to my parents that their son has done nothing wrong in last 4 and half years in Australia.”

2. The applicant submitted a further document at hearing, titled ‘Got mail from visa cancellation’. The document reads:

   “I got an email that my visa will be cancelled. Due to that I applied and got COE of Diploma of business from another college hoping that they will forgive me. Visa got cancelled. I was thinking of giving my life but what keeps me alive is MUSIC. Since my childhood I was good in music due to narrow-minded culture in NEPAL we are forced to study like IT/MBBS/Engineering. I came here hoping that I would get IT degree and my parents will be happy. They don’t know yet My visa is cancelled and that’s the reason I even go back to see them. Its been almost 5 years I haven’t seen them and they are dying the see me. I have waited like my last day since my VISA got cancelled. I hope at least I get a chance to study Diploma of music Industry for 1 year.”

3. The applicant submitted another document at hearing titled ‘Mentally disturbed’. The document reads:

   “I hoped that I could get a degree from UTS but due to difficult situation I got enrolled in small college where I couldn’t find study environment. Although I tried by couldn’t study. Due to unsatisfactory result my COE got cancelled. After getting my COE cancelled also I keep trying to get enrol again with 28 days. Due to careless/lack of communication of College also I couldn’t find appropriate decision…”.

4. The applicant also submitted a document titled ‘Reason for changing college’. The document reads:

   “Earthquake April 25 2015 NEPAL (House was destroyed). Asked help from UTS: Insearch for fee help but didn’t get any help so applied for a release letter. Release letter got rejected. Couldn’t afford fees and COE got cancelled.”

Applicant’s Evidence at Hearing

1. The applicant’s evidence at hearing, relevant to the issues in this case, was, in summary:

   a.the applicant did not dispute he had not been enrolled since 18 April 2016. His CoE was cancelled for lack of academic progress;

   b.the applicant was shown a copy of his PRISMS summary. He agreed the PRISMS record was accurate. The only course the applicant has finished since arriving in Australia was a general English course commencing on 23 January 2015 and completing and 7 August 2015. He studied in this English class to ensure that he remained compliant with the enrolment condition attached to his visa. He arrived in Australia in February 2015.

   c.Prior to cancellation, he had studied for only three months. When he hasn’t been studying or enrolled, he has been producing music. He still wishes to study music, but after his visa cancellation he considered his options for studying abroad;

   d.he is currently enrolled in a Diploma of Music Industry, a one-year course at TAFE.  ;

   e.even prior to the earthquake, the applicant’s academic performance was poor, he says due to his health conditions. He was unsettled when he initially came to Australia and was required to move often. He provided medical certificates to the education provider;

   f.He had wished to study music from childhood, but that those types of courses are not available in his home country and he felt he had little choice but to study engineering. Now that he has a chance, he just in which he is enrolled, and then return to his country;

   g.if he returns without having completed at least one the will alter his entire social standing including machine’s prospects for marriage, and generally limiting his future to something less bright than he hopes. Returning home without a qualification he told the Tribunal will mean that he will never be respected socially, and feels he will become an embarrassment to his parents, as well as causing them significant disappointment. He wishes only to completeness one qualification in return home. He had no intention of staying in Australia permanently;

   h.other than his expectation of loss of social status and embarrassment should he return home without completing a qualification, the applicant has no other concerns preventing him returning to his home country;

   i.part of the reasons the applicant performed poorly in university studies was due to a medical condition which causes him to suffer unpredictable bouts of extremely low blood pressure. He required medication for this condition and the unpredictability of it significant affected his ability to schedule his student load;

   j.the Tribunal raised with the applicant it’s concerned his enrolment record reflected poorly and suggested he was not genuinely in Australia for the purpose of study, and that being in Australia as a student was not his priority. The applicant replied that he really wanted to study music. In response the Tribunal’s further question why then he had waited until 2019 to obtain this enrolment the applicant referred to being unaware he could study the music course whilst he held a bridging visa. When asked why did not think he could study whilst he held the abridging Visa he referred to information provided by his migration agent who told him to “just to remain enrolled”. The applicant’s explanation in this regard was unsatisfactory, circular and did not explain the lengthy delay. Essentially, the applicant told the tribunal he just wanted to maintain his Visa for a while so he “could stay and study here”. He was unable to provide the Tribunal with a satisfactory explanation for his delay in enrolling into a course he says was his passion.

   k.In 19 May 2017, he had begged the Department for a second chance, that was two years prior and the applicant was yet to even commence his music course .  The Tribunal raised this squarely with the applicant as a concern as to the genuineness of his expressed desire to study music;

   l.the Visa cancellation has affected him mentally and he has done itself behind as compared to his friends. He hasn’t seen his parents in five years and misses them terribly. He believes that he cannot return home without his qualifications and will need to find somewhere to live that is not his home country. He is just trying to get one music degree then he can go back and say “mum I have done this.”

   m.everything is getting harder in his home country in terms of getting a job and he doesn’t have a degree he will find it very difficult to find employment.

2. The applicant impressed as a witness who believed his evidence honestly reflected his circumstances. His evidence was for the most part, given in a frank and forthright manner although the Tribunal found his responses to the questions about his delay in enrolling in his music course evasive.  He was very focused on the necessity of getting just one qualification, but as a Tribunal raised with him his conduct over that period of time has been Australia was inconsistent with that stated desire.

Applicant’s Post-Hearing “Submissions” Received 4 and 5 August 2019

1. The applicant submitted a document post-hearing titled ‘Reason for not holding current COE’. The “submission” reads:

   “I applied in TAFE (Diploma of Music Industry) myself for the first time. I didn’t knew that overseas student has different COE which is recorded in PRISM. I’m enrolled in TAFE and my class commenced on 6 Aug 2019 but the problem is I’m not enrolled as a international student holding COE. After my hearing day I emailed TAFE for my COE but they replied that I have to apply again as a intentional student but I got negative response saying that I don’t meet GTE requirement which is my previous academic progress and value of course in my home country. But I’m still enrolled in TAFE now. To hold COEI have applied in JMC for same course. I have submitted all the needed documents to them and waiting for their response. Now its too late to apply visa to study in Manchester. Allow me to complete at least diploma of music from TAFE. I will do my best to get COE and apply student visa. Please I’m doing you a begging request to help me get student visa so that I could see my parents and explain everything and focus in my career.”

DOES THE GROUND FOR CANCELLATION IN S.116(1)(B) OF THE ACT EXIST?

Did the applicant comply with Condition 8202?

1. To his credit, the applicant frankly admitted at hearing he had not, prior to cancellation, been enrolled since 18 April 2016, and volunteered to the Tribunal the reason his CoE was cancelled (lack of academic progress).  At the time his Visa was cancelled, the applicant’s evidence, which the Tribunal accepts, is that he had studied for a total of three months.

2. On the evidence before the Tribunal, the applicant was not enrolled in a registered course of study since 18 August 2016.  As a result, the applicant failed to comply with visa condition 8202(2)(a).

3. Accordingly, the Tribunal is satisfied the ground for cancellation in s.116(1)(b) exists.

4. As the ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa.

SHOULD THE DISCRETION TO CANCEL THE VISA BE EXERCISED?

Consideration of the discretion to cancel the visa

1. 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.

2. 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 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

1. The Tribunal is satisfied the applicant’s intended purpose for his travel to and stay in Australia was study.  There is no evidence to the contrary before the Tribunal.

2. On the evidence before the Tribunal, the applicant was not enrolled in any course of study for one year, one month and 13 days prior to cancellation of his Visa..

3. Student visas are granted for the purpose of non-citizens and non-permanent residents studying towards, and achieving, an educational qualification in Australia.  That purpose cannot be achieved unless the visa holder is enrolled in a registered course of study.  Taken in that context, the Tribunal finds the applicant’s failure to be enrolled in a registered course of study for more than 13 months whilst holding the student Visa and remaining in Australia is very significant and weighs in favour of cancellation. 

4. The Tribunal is not satisfied the applicant’s originally intended purpose for travel to and stay in Australia provides a compelling need to travel to and remain in Australia.  Failing to be enrolled for more than 13 months is entirely inconsistent with such need and the applicant has not given any evidence suggesting he has any such need.  The Tribunal gives this consideration weight in favour of cancelling the visa.

5. The applicant has not completed any courses of study since his Visa was cancelled. Prior to cancellation, the applicant completed only one short course and ozone evidence studied only for a period of three months. The applicant was unable to explain the delay in obtaining enrolment into his music course, particularly given his appeal to be given one further chance made to the Department in response to the NOICC, more than two years ago. The tribunal is not satisfied the applicant’s intentions to study provides a need for the applicant to remain in Australia.  The Tribunal gives his consideration weight in favour of cancelling the visa.

The extent of compliance with visa conditions

1. Other than his non-compliance with condition 8202(2)(a), it appears as is set out in the decision record the applicant has also failed to comply with Visa condition 8516 requiring him to remain enrolled in a higher education sector course. The Tribunal accepts the evidence set out in decision record that applicant’s enrolment obtained subsequent to receipt of the NOICC and prior to cancellation was in vocational sector courses, inconsistent with his higher education sector Visa. There is no evidence before the Tribunal disclosing any instance of the applicant failing to comply with any other conditions imposed on his visa.  Although the evidence does not satisfy the Tribunal the applicant breached any other condition imposed on his visa, he was not enrolled in breach of visa condition 8202(2)(a) for more than 13 months and then obtained enrolment into a course inconsistent with his Visa type. The Tribunal considers the applicant’s failure to comply with visa condition 8202(2)(a) is significant and weighs in favour of cancelling the visa, but his failure to comply with Visa condition 8516 is not significant and the Tribunal attaches no weight to that failure to comply.

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

1. The delegate accepted cancellation of the applicant’s Visa may cause him some hardship by requiring him to depart Australia although that may be mitigated by being eligible for a Bridging Visa E, providing time for him to finalise any outstanding matters. Additionally, If he did not voluntarily depart Australia, he would become an unlawful non-citizen and be liable for detention under s. 189 and removal under s. 198 of the Act. S. 48 of the Act would also apply, meaning he will have limited options to apply for further visas in Australia, and Public Interest Criterion 4013 may prevent him being granted a temporary visa for three years.

2. The applicant’s evidence at hearing, which the Tribunal accepts, is the music course into which the applicant wished to enrolled wars not available in his home country.  Accordingly, the Tribunal finds the applicant would, upon cancellation of his visa, suffer hardship resulting from being unable to complete that course. However the house was mitigated by the fact the applicant has been able to obtain offer to study that course in the UK so whilst he may not be able to complete the course in Australia, he would not be ultimately prevented from achieving his aims.  This hardship includes forfeiting part or all of his prepaid course fees, reducing his employability in future, causing diminution in his income potential and restricting his social status and marriageability.

3. The Tribunal considers these specific hardships weigh against cancellation.

4. The Tribunal accepts visa cancellation ordinarily results in the visa holder becoming unlawful and liable for detention under s.189 and removal under s.198 unless the visa holder voluntarily departs Australia or holds a bridging visa. As a review applicant before the Tribunal is eligible for a Bridging E Visa which would remain in force for 35 days after the Tribunal makes its decision on the review application or the applicant departs Australia, whichever is the earlier, the Tribunal is not satisfied the applicant would immediately become unlawful or liable to detention or removal upon cancellation, or be caused any hardship as might otherwise result.

5. The Tribunal accepts the applicant would, if his visa were cancelled, be subject to s.48 of the Act, which significantly limits the classes of visa for which he may apply onshore. The Tribunal is satisfied cancellation of the applicant’s visa would prevent his re-entering Australia for up to 3 years as he may not meet the public interest criterion 4013.

6. The Tribunal considers any hardship as may be caused by these intended consequences of cancellation weighs in favour of not cancelling the visa

Circumstances in which ground for 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

1. The applicant relied on the devastating earthquake in his home country as causing his failure to remain enrolled. However in later evidence before the tribunal the applicant agreed when it was pointed out to him that his academic performance had already been affected prior to the earthquake, and the Tribunal finds in those circumstances, although the earthquake was tragic and would have by itself been causative of the applicant’s failure to remain enrolled, without the intervention of the earthquake, the applicant would still have had his enrolment cancelled for failure to progress academically.

2. The Tribunal accepts the earthquake in the applicant’s home country would have significantly affected him in terms of the length of time the applicant remained not enrolled. Had the earthquake not occurred, the Tribunal is prepared to accept the length of time the applicant was not enrolled would have been abbreviated, and there would have been flow-on effects in terms of a reduction in difficulty faced by the applicant in obtaining reenrolment. However, nothing in the evidence before the tribunal provides any basis for the Tribunal to make any finding as to when the applicant might have re-enrolled in the absence of the earthquake and the Tribunal refuses to speculate on that matter. The tribunal’s finding in this regard is a finding only that the earthquake contributed to the length of time the applicant was not enrolled.  The Tribunal makes no findings as to the precise degree of that contribution.

3. On the evidence before the tribunal, the circumstances in which the ground for cancellation arose are twofold, one of which is wholly within the applicant’s control, that is his poor academic performance and one which is wholly outside the applicant’s control, that is the effect of the earthquake in his home country. 

4. Accordingly, the tribunal is satisfied the applicant’s failure to remain enrolled was partially caused by circumstances outside of his control, and partially caused by his own conduct. In the absence of the PAM3 guidelines indicating the visa should not as a general rule be cancelled where the circumstances in which the ground cancellation arose were beyond the Visa holder’s control (the general rule), the Tribunal considers the two contributing causes balance against each other and The Tribunal weighs this factor neither in favour of nor against cancelling the visa.

5. The Tribunal considers the applicant’s own conduct and particularly his post cancellation failure to enrolled despite his plea to the Department for a chance to do so more than two years ago without him having taken any real steps towards obtaining enrolment in that period mitigates against applying the general rule in this matter.

Past and present behaviour of the visa holder towards the Department

1. There is nothing in the evidence before the Tribunal to suggest the applicant’s past or present behaviour towards the Department was adverse.  The Tribunal weighs this factor neither in favour of nor against cancelling the visa.

Whether there would be consequential cancellations under s.140

1. On the evidence before the Tribunal, there are no persons in Australia whose visas would, or may, be cancelled under s140.  The Tribunal weighs this factor neither in favour of nor against cancelling the visa.

Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable 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

1. The Tribunal is satisfied cancellation of the applicant’s visa would, in addition to preventing his re-entering Australia for up to 3 years as he may not meet the public interest criterion 4013, limit his ability to remain in Australia but would not, whilst his Bridging Visa E remains in-force, result in his immediately becoming unlawful and liable to detention under s.189 of the Migration Act or removal under s.198 of the Migration Act.

2. The Tribunal accepts the applicant would, if his visa were cancelled, be subject to s.48 of the Migration Act, which significantly limits the classes of visa for which he may apply onshore.

3. The Tribunal gives this consideration weight in favour of not cancelling the visa. 

Whether 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

1. Non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there will be a risk of harm.  Australia is a signatory to a number of international instruments, which give rise to non-refoulement obligations.  Australia is a signatory to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR).

2. Non-refoulement obligations' is not confined to the protection obligations to which s.36(2) of the Act refers: see Ibrahim v MHA [2019] FCAFC 89 at [103]. It is defined in the Act to include non-refoulement obligations that may arise because Australia is a party to one of the instruments mentioned above, or any obligations accorded by customary international law that are of a similar kind.

3. On the applicant’s evidence at hearing, his only reason to remain in Australia is to complete his studies.  Although the Tribunal accepts this is the applicant’s honest belief, the applicant’s conduct is inconsistent and the Tribunal does not accept the applicant’s evidence as evidence of anything beyond the applicant’s intention. The Tribunal does however accept the applicant does not wish to return home without having completed a qualification. The applicant’s evidence as to problems he would be caused if he returned without a qualification however did not extend beyond those difficulties as would ordinarily and reasonably be foreseen as likely to affect any unqualified person competing against other better qualified candidates on an open labour market, and social embarrassment.  Those matters would not attract non-refoulement obligations.

4. The Tribunal finds, in the circumstances of this case, cancellation would not lead to removal in breach of non-refoulement obligations.  As the Full Federal Court stated in COT15 v MIBP (No 1) (2015) 236 FCR 148, cancellation of a visa is legally distinct from removal.

5. There is no evidence before the Tribunal that cancellation of the applicant's visa would result in Australia breaching any obligations regarding the best interests of children.

6. The Tribunal considers these factors weigh neither in favour of nor against cancellation.

If the applicant’s visa is a permanent visa, whether the former visa holder has strong family, business or other ties in Australia;

1. The applicant’s visa is a not a permanent visa.

Any other relevant matters.

1. The evidence before the Tribunal does not disclose any other relevant matters.

Conclusion

1. The PAM3 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. In this case, the Tribunal has found the circumstances in which the ground cancellation arose were partially beyond the applicant’s control, but that the applicant would in the absence of the earthquake in his home country, have had his enrolment cancelled as the reason his enrolment was cancelled, that is his failure to progress academically, predated the earthquake. However, the Tribunal does accept the period during which the applicant was not enrolled would likely have been shorter in the absence of the earthquake. In those circumstances, the Tribunal considers there exists, albeit just barely, reason to not deprive the applicant of the benefit of the general rule.

2. The applicant has not demonstrated to the Tribunal satisfaction that he is a genuine student who should have his visa reinstated.  He has been dilatory in obtaining enrolment despite pleading to the Department more than two years ago to be given a chance to study. Were it not for the Tribunal’s finding set out in the previous paragraph, that there exists the very slightest of reason for the applicant to not be deprived of the benefit of the general rule, the Tribunal’s determination would have been that the matters weighing in favour of cancellation of the Visa outweighed the matters weighing against cancellation of the Visa, and considering the circumstances as a whole in the absence of the general rule, would have concluded the Visa should be cancelled.

3. However, the Tribunal is satisfied the applicant should not be deprived of the benefit of the general rule and applies the general rule in the applicant’s favour such that the Tribunal concludes the visa should not be cancelled.

DECISION

1. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

2. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Lynda Young
Member

1. ATTACHMENT

1. MIGRATION REGULATIONS 1994

…

Schedule 8

1. (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.