Gurung (Migration)

[2024] AATA 3394

Gurung (Migration) [2024] AATA 3394 (30 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Prakash Gurung

REPRESENTATIVE:  Mr Rajan Goel (MARN: 1679363)

CASE NUMBER:  2312289

HOME AFFAIRS REFERENCE(S):          BCC2023/2164416

MEMBER:T. Quinn

DATE:30 August 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 30 August 2024 at 2:37pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – non-compliance with condition of visa – not enrolled in full-time registered course – breakdown of marriage and divorce – no evidence of mental health provided – ongoing work – new enrolment made after receiving department’s notice of consideration cancelled when visa cancelled – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), 338(2), 347
Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)(a)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant arrived in Australia in 2019 as a dependent on his then wife’s student visa.  He sought and was granted a student visa as primary visa holder on 15 December 2021 with an expiry date of 15 March 2024 providing for more than two years during which the applicant would be permitted to reside in Australia for the purposes of full-time study.[1] 

   [1]           See delegate’s decision.

2. On 8 August 2023, a delegate of the Minister for Home Affairs (‘the delegate’) cancelled the applicant’s Subclass 500 (Student) visa (‘the visa’)[2] on the basis that the applicant had failed to comply with a condition of their visa.  In this case, the applicant breached subclause 2(a) of condition 8202 of his visa in that he failed to maintain enrolment in a full-time registered course.[3]  The applicant did not comply with this condition of his visa from 30 August 2022-14 July 2023.[4]  

   [2]under section 116(1)(b) of the Migration Act 1958 (‘the Act’). 

   [3]           As required by condition 8202(2)(a) of the Migration Regulations 1994 (‘the Regulations’).

   [4]See delegate’s decision.

3. On 15 August 2023, the applicant applied to this Tribunal for a review of the delegate’s decision to cancel the visa.[5]

   [5]Pursuant to sections 338(2) and 347 of the Act. A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application.

4. The applicant appeared before the Tribunal via video hearing on 30 August 2024 to give evidence and present arguments.  The applicant was represented in relation to the review and her representative also attended the hearing of 30 August 2024.  The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

5. The Tribunal exercised its discretion to hold the hearing by video conference.  The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant.  The Tribunal also considered its objective to provide a mechanism of review that is fair, just, economical and quick and the delay that would occur if the hearing were not be conducted by video in exercising its discretion.

6. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. The decision maker is not required to make the applicant’s case. Whilst the concept of onus of proof does not apply to administrative decision making, the relevant facts of the individual case must be supplied by the applicant, in as much detail as necessary to enable the decision maker to properly consider the case that is being put.

7. I have regarded all the information before me, including the Department and Tribunal files, and all information and evidence provided by the applicant to the Tribunal in concluding that the decision to cancel the applicant’s visa should be affirmed.  My reasons follow.

   STATUTORY FRAMEWORK

8. The issue in this case is whether the applicant, as the holder of a student visa, has breached condition 8202 of the Regulations. If so, the ground for cancellation is made out and the issue then becomes whether the visa should be cancelled pursuant to section 116(1) of the Act.

9. Under section 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 subsection 116(1)(b) of the Act. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Does the ground for cancellation exist?

10. A visa may be cancelled under section 116(1)(b) of the Act if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8202 of the Regulations attached to the applicant’s visa. This condition requires that the applicant:

    a.be enrolled in a registered course, or in limited cases, a full-time course of study or training and that the registered course be undertaken at the required AQF level: 8202(1) and (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

    c.has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).

11. In the present case, the applicant’s visa was cancelled on the basis that the applicant was not enrolled in a full-time registered course of study or training.

12. The applicant was enrolled in a Certificate III and IV in Commercial Cookery and a Diploma of Hospitality Management.  The applicant’s enrolment in the Certificate III in Commercial Cookery was cancelled for disciplinary reasons on 30 August 2021 and the applicant was not enrolled in a full-time registered course of study from that date until after he received a notice of intention to consider cancellation (‘NOICC’) on 14 July 2023. 

13. At the hearing, the applicant acknowledged and accepted that there are grounds for cancellation.

14. For these reasons, I am satisfied that the ground for cancellation in section 116(1)(b) of the Act exists. As that ground does not require mandatory cancellation under section 116(3) of the Act, I must proceed to consider whether the visa should be cancelled.

    Timeline of study and enrolment history

15. The applicant arrived in Australia in December 2019 as a dependent on his then wife’s student visa.  He worked in housekeeping and then in a fast-food restaurant during this time.

16. The applicant then applied for and was granted his own student visa on 15 December 2021 to complete a Certificate III and IV in Commercial Cookery and a Diploma of Hospitality Management.  He has filed submissions indicating he ceased study in June 2022, his enrolments were cancelled in August 2022 and the applicant remained unenrolled until after receiving the NOICC in July 2023. 

17. On 14 July 2023, three days after the date of the NOICC, the applicant enrolled in a Certificate IV in Kitchen Management and a Diploma of Hospitality Management.  These enrolments were cancelled when his student visa was cancelled, and he claims that he sought but was not granted study rights in relation to the bridging visa he has held since that time.

18. There is no evidence before me that the applicant has completed any units or certificates in any area of study in Australia.

    Consideration of discretion to cancel the visa

19. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. I have had regard to the circumstances of this case, including matters raised by the applicant and her representative, 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

20. I refer to and repeat paragraphs 15-18 above.

21. The applicant has filed evidence detailing the traumatic breakdown of his marriage which involved his ex-wife’s infidelity and refusal to sign divorce papers until he paid her AUD600.  He has filed text messages in relation to the payment of AUD600 in this regard.  The applicant states that he was angry, depressed and could not concentrate when his marriage broke down and withdraw and turned to alcohol.  When asked at hearing whether he sought any sort of help from a mental health or medical professional, the applicant gave evidence that he was helpless and confined to his room.  He has filed submissions stating he did not realise this was a medical condition and did not think to seek therapy or see a doctor for his symptoms.  I am troubled by this evidence.

22. The applicant has filed a copy of his divorce order dated March 2023.

23. The applicant gave evidence that he heard from his course provider when he had missed about 2-3 weeks of college and went to the office to say he was unwell, could not concentre or study.  He initially gave evidence that this conversation took place in January 2023 but when I reminded him that his enrolment was cancelled in August 2022 he said, ‘maybe it was in 2022’.

24. The applicant gave evidence of the work he has engaged in since his arrival onshore, including having worked at a Nepali restaurant from July – December 2022 and working at an Italian restaurant for the last four months.

25. The applicant had given evidence that he could not leave the room and was depressed and unable to concentrate and that this was the cause of him not being enrolment from August 2022-July 2023.  He also gave evidence that he was working at a Nepali restaurant between July and December 2022.  When I put to the applicant that this evidence was inconsistent, he said that the restaurant was only across the street and was a friendly family environment where he was helping, and they were giving him rent and some money.  His representative also made submissions about the need for the applicant to support himself onshore even though he was unable to study.  I did not find this evidence or submissions persuasive and have concerns about the applicant’s credibility.

26. Later in the hearing the applicant gave evidence of moving to Newcastle to work in aged care for a few months in 2023 but said she had to leave that job because of her visa cancellation.

27. I empathise with the applicant in relation to the breakdown of his marriage and the circumstances in this regard.  However, if an individual is residing onshore based on an intention to study, such study should take priority over work.  There are financial requirements before such visas are granted.  It raises concerns about an individual’s true intentions in residing onshore if when doing so they are working but not studying, in breach of the conditions of a student visa upon which their right to reside is based.  The applicant has remained in Australia on a student visa for 10 months and has given evidence he was able to work but not study for at least four of those ten months.  This evidence raises concerns about the true nature of the applicant’s intentions.

28. The applicant gave evidence at hearing and his representative made submissions that he does not want to return to Nepal empty handed and that he is determined to complete courses to become a qualified chef and use those qualifications to get a better future in Nepal, including securing a new partner and having a family.

29. I understand that a visa cancellation can be disappointing for visa holders and their families, but I do not consider this constitutes a compelling need to remain in Australia. 

30. I have considered all the evidence before me and do not consider the applicant has a compelling need to remain in Australia.  I place some weight in favour of cancelling the applicant’s visa in this regard.

    Circumstances in which ground of cancellation arose

31. I refer to and repeat paragraphs 20-29 above.

32. I accept that the applicant went through a difficult, disappointing and upsetting marriage break down.

33. Challenging personal events and other unkind life stressors must be dealt with by everyone at some point in their lives.  Non-Australian citizens on student visas in Australia are no exception.  Many student visa holders are forced to contend with such difficulties during their stay in Australia.  They are all burdened in a similar way in that they have to deal with some degree of emotional turmoil while away from their families in their home country.  At the same time, they are obviously burdened with having to maintain their studies in Australia in order to comply with the strict visa conditions attaching to student visas.  Many such students are young adults, just like the applicant.  There is no psychological evidence, beyond the evidence of the applicant himself, that provides an adequate account of his mental state during his time of breaching his student visa.  I am therefore unable to form any view as to whether the applicant was suffering any clinically diagnosable mental health condition that put his suffering into a category that goes beyond the ordinary mental difficulties that people suffer in dealing with life’s stressors, and that this may have been a cause of him remaining unenrolled for a period of ten months.  Further, I find it difficult to accept that the applicant was finding his personal circumstances too challenging to study but that he was still able to work.  I note the applicant’s response at hearing in relation to this (set out above) but do not find it persuasive.

34. I empathise with the applicant in relation to his suffering and accept this was a challenging time for him.  However, the option to return to Nepal to avoid breaching his visa conditions was open to the applicant at all times.  Instead, he failed to resume any study at all for 10 months, was issued with a NOICC and his visa was subsequently cancelled.  This is not the conduct one would expect of a genuine student who takes their responsibilities in residing onshore on the basis of a student visa seriously.

35. I am also troubled by the evidence that the applicant did not re-enrol until after the date of the NOICC.

36. I acknowledge the applicant’s ex-wife’s behaviour was out of his control and that mental ill health can also feel out of an individual’s control to a significant extent.  However, I consider that if an applicant is not in a position to comply with the conditions of their visa, it is their responsibility to take appropriate action to avoid breach of same.  It is the responsibility of a visa holder to ensure they are complying with the conditions of their visa.  I place some weight in favour of cancelling the applicant’s visa in this regard.

    Extent of compliance with visa conditions

37. The applicant has otherwise complied with student visa conditions.  However, there is no evidence before me that the applicant many any meaningful academic progress from the time his student visa was granted in December 2021 until August 2022.  This is not what one expects of a genuine student who has been onshore on the basis of a student visa.  Further, the applicant’s breach of the condition of the visa is significant, being ten months.  I consider the ten month breach a significant breach and give weight in favour of cancelling the applicant’s visa in this regard.

    The degree of hardship that may be caused to the visa holder and any family members

38. The applicant gave evidence at hearing and submissions were made by his representative at hearing about how disappointing it will be for him and his parents if he has to return to Nepal without any qualifications, after being onshore for five years now.  I refer to and repeat paragraph 28 above.  I empathise with the applicant and his parents.

39. The applicant wishes to complete his study and work as a chef and start a new family in Nepal. 

40. I accept that the cancellation of a visa is disappointing and that a significant amount of money may be invested in a person in order to set them up in a country to live independently in order to study.

41. I recognise that the hardship is felt by family members who may also feel let down and disappointed.

42. I am, however, mindful of the seriousness of obtaining a student visa and then remaining in Australia and breaching a condition of that visa.  Whilst appreciating the hardship the applicant and his family may face regarding a cancelled visa, it does not outweigh the breach and I give these reasons limited weight in my considerations.

    The visa holder’s past and present behaviour towards the Department

43. There is nothing before the Tribunal to indicate any other adverse conduct by the applicant to the Department.  I give some weight against cancelling the applicant’s visa in this regard.

    Whether there are persons in Australia whose visas would, or may, be cancelled under section 140 of the Act

44. This is not relevant to the applicant.

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

45. If the visa is cancelled, this will result in the following:

    a.the applicant will become an unlawful non-citizen and liable to detention under section 189 and removal under section 198 of the Act;

    b.the applicant will have limited options to apply for further visas in Australia;

    c.the applicant will fall within the criteria whereby a penalty for the breach of condition may be imposed.  The applicant could therefore be subject to a three (3) year exclusion period where they will not be eligible to have any temporary visa application approved if they apply for a visa that requires Public Interest Requirement 4013 to be met.

    I give little weight to this consideration in favour of the applicant because:

    ·these are the intended consequences of the legislation when a visa is cancelled under these grounds;

    ·it reflects the seriousness with which the Department takes this type of cancellation ground;

    ·the applicant will be eligible to apply for a bridging visa while they make arrangements to depart Australia and therefore the likelihood of detention is only in the event that they do not co-operate in applying for a bridging visa.

    Australia’s international obligations

46. There is nothing before the Tribunal to suggest that the cancellation of the visa would breach any international obligations.  I place no weight on this in favour of or against the applicant.

    Any other relevant matters

47. The Tribunal undertook a PRISMS search in relation to the applicant on 30 August 2024 which was discussed briefly at hearing.[6]  I do not consider I have sufficient information about the matters discussed in this regard to place any weight on this document and I have not done so.

    [6]           See attachment.

    CONCLUSION

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

    DECISION

49. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

    T. Quinn
    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.

    Attachment – PRISMS search

    All registered courses and course providers are listed in the Commonwealth Register of Institutions and Courses for Overseas Students (‘CRICOS’), an online register kept in accordance with the requirements of the ESOS Act.[7]  Details of courses listed in CRICOS are integrated into the Provider Registration and International Student Management System (‘PRISMS’), a database maintained by the Australian government.[8] The PRISMS database is the principal means by which registered course providers comply with legislative requirements relating to the monitoring of international students studying in Australia. Upon enrolling an international student into a registered course of study, the course provider enters the details of that enrolment into the PRISMS database. The database then records a Confirmation of Enrolment (‘COE’) for the student. The COE functions as a record of the student’s enrolment status in the course and as proof of enrolment for the purposes of the Regulations.

    [7]Section 10 of the ESOS Act.

    [8]See generally, Department of Education and Training, Provider Registration International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018).