Bogati (Migration)

[2020] AATA 1566

Bogati (Migration) [2020] AATA 1566 (27 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sulab Bogati

CASE NUMBER:  1908202

HOME AFFAIRS REFERENCE(S):          BCC2019/302460

MEMBER:Amanda Upton

DATE:27 April 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 27 April 2020 at 2:34pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not enrolled in registered course – enrolment cancelled for non-payment of fees – attempt to pay online on last due day failed – offered enrolment for following semester – discretion to cancel visa – mother’s illness and family’s financial difficulty – significant period of non-compliance – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116(1)

Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 27 March 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2.    The delegate cancelled the visa on the basis that the holder had not complied with a condition on their 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.

3.    The applicant appeared before the Tribunal on 9 December 2019 give evidence and present arguments. The applicant was assisted in relation to the review by his registered migration agent although the agent did not appear in the hearing.

4.    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

5. 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?

6.    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).

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

8.    The applicant had his CoE cancelled on 9 April 2018 for non-payment of fees. The applicant says that he had tried to pay his fees for his course on the last due day for payment, however could not due to some issue with the online payment system.  He attended at the school on the next business day but was told that he could not pay his fees then as they were past due and the CoE had been cancelled.

9.    The applicant was offered an enrolment from July 2018 however he declined it. The reason he gave the Tribunal for this was because he did not think it was right to take a whole semester gap.

10.    The applicant agrees that he has not been enrolled in a registered course since April 2018. 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

11.    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’.

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.

12.    The applicant’s CoE was cancelled on 9 April 2018 for non-payment of fees. The applicant had attempted to pay the fee and was unable to do so due to having some difficulty with the online payment system. He also called the education provider to speak to someone for help in paying the fees but help was not available.

13.    The fee payment was attempted on the last day due for the fees as his family had been having financial difficulty due to the illness his mother had suffered in September 2016 and the associated care and medical costs. The Tribunal notes however that the reason for non-payment was not due to financial difficulty. The applicant was capable of paying the fees due and attempted to do so.

14.    The Tribunal accepts the applicant’s evidence with respect to the difficulty that he experienced in paying the fees and the reason that it was left until the last minute. The Tribunal makes no adverse findings against the applicant with respect to these circumstances.

15.    After the cancellation of the CoE the applicant made enquires with the education provider to facilitate his re-enrolment. He was offered a CoE for July 2018. The applicant chose not to take this CoE and remained unenrolled from the time the CoE was cancelled.

16.    The applicant told the Tribunal that he did not take the CoE as he did not think that it was right to have the whole semester gap, that he was depressed and could not concentrate on his studies. There has been no medical evidence provided that would substantiate the existence of a medical condition that rendered the applicant unable to enrol in and attend studies as he was offered in July 2018.

17.    The Tribunal considers that it was not beyond the applicant’s control that he was unable to be enrolled in a course. He was offered an enrolment and chose not to take it. He then remained unenrolled in a course for a period of approximately 20 months. The Tribunal affords this significant weight in favour of cancelling the visa.

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

18.    The applicant’s purpose of travel to Australia in 2014 was for the purpose of study. He told the Tribunal that he does not want to go back home without having completed his studies. The Tribunal accepts that the applicant’s reason for travel to Australia was to study and that he is genuine in his desire to finish studying in Australia rather than Nepal.

19.    The Tribunal gives this factor some weight in favour of not cancelling the visa.

The extent of compliance with visa conditions

20.    The applicant agrees that at the time of the hearing he had not been enrolled in a registered course of study for approximately 20 months. The Tribunal considers this to be a significant period of non-compliance and gives this factor weight in favour of cancelling the visa

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

21.    There are expectations of the applicant held by his family that he would finish the degree, the non-completion of which may cause both him and his family emotional distress. He feels that if he were not to be able to get a qualification in Australia he would not be able to further study in Nepal but would have to start all over again.

22.    Tribunal accepts that a cancellation of a visa results in opportunities lost and disappointment. It also accepts that there will be a financial loss for the applicant and a delay in achieving what they may have wanted to achieve in Australia.  However, it is expected that there will be consequences to a cancellation. As such, the Tribunal gives minimal weight to these considerations raised by the applicant.

Past and present behaviour of the visa holder towards the department

23.    There is nothing before the Tribunal to indicate any adverse conduct by the applicant to the Department and as such the Tribunal gives this some weight in favour of the applicant.

Whether there would be consequential cancellations under s.140

24.    There are no other people associated with the visa and as such the Tribunal affords this factor no consideration.

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

25.    If the visa is cancelled, the applicant will become a non-lawful citizen and his ability to apply for other visas would be limited. Whilst unlikely in this instance, he could be detained until he made arrangements to leave the country.

26.    The applicant would also be section 48 barred and may not meet the requirement for certain visas for three years.

27.    The Tribunal sees these as natural consequences of the cancellation of a visa. The applicant retains his passport and is able to return to Nepal. The applicant raised no reason that he would be unable to return to Nepal.

28.    The Tribunal gives this factor minimal weight in favour of the applicant.

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.

29.    The applicant has provided no reasons for being unable to return to Nepal and has indicated that if his visa was to be cancelled he would go back to Nepal, as such the Tribunal affords this factor no weight.

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

DECISION

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

Amanda Upton
Member

32.     

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.