Gurung (Migration)

[2018] AATA 4944

Gurung (Migration) [2018] AATA 4944 (30 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Bishal Gurung

CASE NUMBER:  1702750

HOME AFFAIRS REFERENCE(S):           BCC2016/4329559

MEMBER:Brendan Darcy

DATE:30 October 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 30 October 2018 at 9:42pm

CATCHWORDS

MIGRATION – Cancellation – Student (Temporary) (Class TU) – Subclass 573 (Higher Education Sector) – enrolment in registered course of study – substantial gap in study – medical condition – no supporting documentation – decision under review affirmed

PRACTICE AND PROCEDURE – applicant failed to attend hearing – decision made on review

LEGISLATION

Migration Act 1958 (Cth), s 116

Migration Regulations 1994 (Cth), Schedule 8 condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 8 February 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 delegate cancelled the visa on the basis that the applicant had breached condition 8202 as he was not enrolled in a registered course for full-time study. 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. On 9 October 2016, the applicant was invited to appear to a scheduled hearing for 26 October 2018 via email account of the applicant. Two reminder SMS messages were sent to the applicant’s mobile phone about the scheduled hearings on 19 and 22 October 2018 respectively. 

4. The Tribunal did not receive any response to the invitation to attend the scheduled hearing. Neither did the Tribunal receive any submissions by the applicant or on the applicant’s behalf to consider a postponement, including a medical certificate; nor any other submission whatsoever, right up to and including the beginning of the scheduled hearing. The hearing was extended a further ten minutes for any late appearance or requests for postponements; however the applicant did not appear or contact the Tribunal and it subsequently closed the hearing. It waited a further four days for requests for a further hearing to be scheduled.

5. However, there has been no documents including medical certificates, no submissions, no written responses to any hearing invitation and no requests for postponements forwarded to the Tribunal to consider, either from the applicant or from anyone on his behalf, right up to the time of making his decision.

6. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to proceed with its decision-making on this review application without taking any further action to enable the applicant to appear before it.

7. 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

8. 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?

9. 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).

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

11. The delegate’s decision submitted to the Tribunal indicates the applicant had been granted a Subclass 573 Higher Education Sector student visa on 23 July 2014 and was due to expire on 30 August 2017.  It also shows that Provider Registration and International Students Management System (PRISMS) records indicate the applicant was not enrolled in a registered course of study from 21 April 2016 until the date of cancellation.

12. On 27 January 2017, the Department forwarded a Notice of Intention to Consider Cancellation (NOICC), inviting the applicant to respond in writing. On the same day, the applicant sought an extension of time in which to respond. This request was granted. On 7 February 2017, a response to the NOICC was received by email. In this submission, the applicant did not dispute the grounds for cancellation existed and provided reasons not to cancel the visa.

13. On behalf of the Minister, the delegate proceeded to cancel the applicant’s student visa on 8 February 2017. 

14. The applicant applied to have the delegate’s cancellation decision reviewed by the Tribunal on 17 February 2017 with the decision record attached.

15. The applicant neither attended a scheduled hearing with the Tribunal, nor provided any supporting documents or arguments to the Tribunal regarding the grounds for cancellation. 

16. On the evidence before the Tribunal, the applicant was not enrolled in a registered course study from 21 April 2016. Nor was he the holder of a previous class TU or any other student visa.

17. As the applicant has failed to comply with the visa condition 8202, the ground for cancellation in s.116(1)(b) exists.

    Consideration of the discretion to cancel the visa

18. Having found that the applicant had breached with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

19. 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).

20. On 7 February 2017, the applicant emailed a written statement to the Department as his response to the issued NOICC. The applicant explanted that he arrived in Australia on 13 August 2014 to study a Certificate IV, followed by a Diploma of Accounting and a Bachelor’s degree in Commerce. He stated that he was a genuine student but faced some issues in adjusting to this new country, its rules and way of life.

21. He further claimed to come from a close knit family and that his grandmother, to whom he was especially close, passed away a short time after he arrived in Australia and that he did not have much experience with death in the family. The news of his grandmother, he argued, affected him deeply. The applicant travelled to Nepal but could only stay for one week due to study constraints. The combination of grief and study requirements, the applicant further argued, cause him to feel depressed and demoralised. This was then exacerbated by the large earthquake that afflicted Nepal in April 2015, which also destroyed his family home and injured family members. The applicant claimed that he dare not ask his parents for money as they were struggling due to this unforeseen disaster. The applicant also added was diagnosed with vitiligo (a skin condition characterised by patches of the skin losing pigment) which affected his confidence and lead the applicant to isolate himself.

22. The applicant stated that overtime hi learned to cope with vitiligo; that the spread of the disease stopped; that his family ‘got back on their feet and have resumed normal lives’; and are now in a position to fund his tuition fees once again. He described himself as now emotionally stable and he wanted to return to his studies and build his career.  He also claimed that he had been immature as a young man who did not handle stress properly and ‘let go of‘ his study obligations.

23. No attached documents accompanied this emailed statement.

    The purpose of the visa holder’s travel to and stay in Australia

24. The Tribunal has taken into consideration the applicant’s written NOICC and his stated desire to place his career and studies back on track and that he had mitigating or extenuating circumstances for his breach of 8202. In it he vaguely indicates the purpose of his study was to become an accountant.  

25. While these explanations are plausible in themselves, the Tribunal notes there were no documentary evidence for them to the Department, when such evidence such as a death certificate should not have proved difficult to submit. Furthermore the applicant did not provide any additional written, documentary or oral evidence to the Tribunal at all. Had the applicant attended the scheduled hearing, the Tribunal would have sought answers about the extent to which he completed his studies or attended class or whether he was capable or motivated to completing full time study in a Bachelor’s degree; however he did not attend despite being given the opportunity to do so. The Tribunal places considerable weight on the lack of responsiveness towards it by the applicant in finding that the applicant’s original and ongoing purpose of traveling to Australia was not to study. The Tribunal gives this factor significant weight in finding the applicant is not a genuine student and significant weight towards the visa being cancelled.

    Extent of non-compliance with any conditions subject to which the visa was granted

26. While there is no evidence before the Tribunal that the applicant has not breached any other conditions imposed on this cancelled student visa, the fact remains he was not enrolled in a registered course for nearly ten months as required by condition 8202. The Tribunal considers this non-compliance significant. Overall it places some weight on this factor in favour of the visa remaining cancelled. 

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

27. The delegate’s decision accepted that there may be some hardships as a result of the cancellation. However the applicant did not advance specific hardships if visa were to remain cancel in his written NOICC response.

28. Whilst the Tribunal accepts that the applicant may suffer some hardship, if the visa remains cancelled, it finds the applicant has not demonstrated any significant hardships at all. The Tribunal gives this factor little weight towards the visa not being cancelled.

    The circumstances in which the ground for cancellation arose: decision-makers should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing.

29. The Tribunal notes again there was no documentation to support the applicant’s assertions that he suffered grief or mental suffering arising from a number of events, which are outlined above. However the applicant did not provide any evidence of the passing of his grandmother. Neither did he submit any medical certificates; nor was other evidence regarding claimed mental health symptoms or that he afflicted by vitiligo. There are no supporting witness statements or documentary evidence such as photographs about his family being adversely affected by the April 2015 earthquake. Such evidence would have been reasonable to submit given the seriousness of any visa cancellation for a temporary resident in Australia. Had the applicant attended the hearing it would have enquired into whether he sought deferment of his studies due to these evidence. The applicant was provided with meaningful opportunities to further argue and to substantiate his claims, including at a schedule hearing at which he did not attend or provide any explanations for his non-appearance.

30. The applicant has not provided any credible evidence to conclude that the visa should not be cancelled in this regard. Accordingly, the Tribunal does not accept there were any extenuating circumstances beyond his control leading to the grounds for cancellation and it gives this consideration significant weight towards the visa remaining cancelled.

    Past and present conduct of the visa holder towards the Department

    There is no evidence that the applicant has not been uncooperative with the Department according to the delegate. There is no adverse information before the Tribunal in this regard. The Tribunal gives it some weight in favour of the visa not remaining cancelled.

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

31. Not relevant.

    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

32. The Tribunal accepts that if the visa remains cancelled that the applicant would have limited opportunities to remain in Australia and may have to depart, detained or be forcibly removed. It accepts that he may be barred from re-entering Australia for up to three years as he will subject to the operations of s.48 of the Act. Furthermore the applicant is not guaranteed that his offshore visa will be approved as he will be subjected to the Public Interest Criterion 4013. He has presented no specific evidence in relation to this factor and accordingly the Tribunal gives this only little weight towards the visa not being cancelled.

    Whether there would be consequential cancellations under s.140

33. There is no evidence before the Tribunal that this is relevant and it gives this factor no weight.

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

34. The applicant has presented no specific evidence in relation to this factor. There is no evidence before the Tribunal that this is relevant and it gives this factor no weight.

    Other relevant considerations

35. The Tribunal has also considered the applicant’s immaturity as to one of the reasons he was in breach of 8202, albeit not an extenuating circumstance. Ordinarily the Tribunal would be sympathetic in this regard given his relative youth when he arrived in Australia. However the Tribunal only places a little weight on this factor in favour of the visa not remaining cancelled, given his non-appearance at a scheduled hearing.

    Conclusion

36. Having found that the applicant has not complied with a condition of the visa to a significant extent, the Tribunal must consider whether to exercise its discretion to cancel the visa.

37. The applicant has presented inadequate written reasons with no documentary evidence to the Department as to the reasons his visa should not be cancelled. He has not provided any additional written or no oral or documentary evidence to the Tribunal as the reasons it should not to cancel his visa. With particular emphasis on the lack of responsiveness to the Tribunal, it has made a number of adverse findings that the applicant is not a genuine student and that there were no credible extenuating circumstances leading to the grounds for cancellation.  In summary, the cumulative factors in favour of the visa remaining cancelled overwhelming outweigh those countervailing factors in favour of the visa not being cancelled.

38. Considering the evidence provided and on weighing the above factors and considering the accepted circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Brendan Darcy
    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.