Kandel (Migration)

[2020] AATA 1696

Kandel (Migration) [2020] AATA 1696 (2 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Suresh Kandel

CASE NUMBER:  1902080

HOME AFFAIRS REFERENCE(S):          BCC2018/4403754

MEMBER:Wendy Banfield

DATE:2 March 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 02 March 2020 at 4:55pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 (Higher Education Sector) – condition to maintain enrolment – after completing diploma, applicant did not want to relocate in order to study for degree – applicant’s course results and doubt of ability to study higher education – enrolment in another diploma course in different subject area and intention to progress to degree level – decision under review affirmed

LEGISLATION

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

Migration Regulations 1994 (Cth), Schedule 2, cl 573.231, Schedule 8, condition 8516

CASE

Singh v MIBP [2016] FCA 679

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 24 January 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant did not comply with the conditions of the Student visa, specifically condition 8516. The applicant had been granted the Student visa in order to study a Bachelor of Information Technology but his enrolment ceased on 20 February 2017. The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

   Background

3. The applicant is a citizen of Nepal and is currently 30 years old. He came to Australia on 23 October 2014 for the purpose of studying a Diploma and Bachelor of Information Technology (IT). Since his arrival, the applicant has completed a Diploma and Advanced Diploma of IT and a Diploma of Leadership and Management. At the time of the hearing the applicant was enrolled in an Advanced Diploma of Leadership and Management.

4. The applicant appeared before the Tribunal on 25 February 2020 to give evidence and present arguments.

   The hearing

5. The applicant confirmed he had travelled to Australia to study a Diploma course followed by a Bachelor degree at the University of Canberra (UC). He said after residing with a cousin in Sydney and completing a Diploma, he applied for a release from UC because he did not want to move. The applicant applied to study at Victoria University but advised that at the time he was not sufficiently prepared to take a Bachelor degree. Instead he enrolled in an Advanced Diploma. The applicant submitted he had been concerned he had not always passed his subjects and decided against further studies in IT.

6. The applicant then enrolled in a Diploma and Advanced Diploma of Leadership and Management. When asked whether he advised the Department or sought any advice about discontinuing studies in higher education, the applicant acknowledged that had been his mistake. The applicant agreed there were grounds to cancel his visa.

7. The applicant was invited to make submissions about any compelling need to remain in Australia. In response he said he still wants to complete Bachelor and Master’s degrees. He said his goal is to join the Australian Army but in order to do that he would need to be a citizen. When asked if he is planning to return to his home country, the applicant said “if things go well” he would not but if he is unable to stay in Australia he will go back to Nepal. The applicant acknowledged he has not returned to Nepal since he arrived in Australia in 2014. The applicant was asked about studying in his home country and he said he wanted an international education and experience.

8. Regarding any hardship that may result from the Student visa being cancelled, the applicant said he has spent a lot of time and money in Australia. He added that he would be affected emotionally as well as financially. The applicant claimed he had not been aware he was required to maintain enrolment in higher education and advised his marks had not been good enough. He said there would be no consequential cancellations as a result of his visa being cancelled.

9. The Tribunal referred the applicant to the legal consequences of cancellation. When asked if he wanted to make any submissions about this the applicant said he wants to remain in Australia until he finishes a Bachelor and Master’s degree. The applicant was not aware of Australia having any international obligations in his case and did not refer to any civil or political issues affecting his ability to return to Nepal. In conclusion, the applicant requested his Student visa not be cancelled so that he can complete his studies.

10. 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

11. 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). 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.

    Does the ground for cancellation exist?

12. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8516 attached to the applicant’s visa.

13. Condition 8516 requires that the applicant must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa. In respect of the criterion requiring the applicant to be enrolled, this requires the applicant to maintain enrolment while they hold the visa: Singh v MIBP [2016] FCA 679. Relevantly, it was a criterion for grant of the applicant’s Subclass 573 visa that the applicant met cl.573.231 if they were not an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student.

14. The definition of ‘eligible higher degree student’ requires that the applicant is enrolled in a principal course with an ‘eligible education provider’ that is a bachelor’s degree, master’s degree by coursework or, for visa applications made on or after 23 November 2014, an advanced diploma in the higher education sector: cl.573.111. ‘Eligible education provider’ means an education provider specified in an instrument made under cl.573.112.

15. To satisfy cl.573.231 the applicant must be enrolled in, or be the subject of a current offer of enrolment in a principal course of a type specified for that subclass by the Minister in an instrument under r.1.40A that was in effect at the time of the visa application. In his evidence at the Tribunal hearing the applicant conceded his enrolment in a Bachelor of IT had been cancelled as he did not want to relocate from Sydney to attend the University of Canberra. Thereafter the applicant undertook Diploma and Advanced Diploma courses rather than continue in the higher education sector as required. 

16. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

17. 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’.

    ·     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 first arrived in Australia in 2014 and was enrolled in a Diploma course leading to a Bachelor degree. On the evidence before it, the Tribunal is satisfied that the applicant’s original intention to travel to and stay in Australia was to study.

19. The applicant was invited to make submissions regarding any compelling need to remain in Australia. In his written submission to the Department dated 24 December 2018 the applicant said he wanted to complete his current course and a degree which would help him with opportunities in his home country. During the hearing, the applicant submitted he wants to complete Bachelor and Master’s degrees. When asked about his career plans, the applicant said he would like to join the Australian Army but would need to be a citizen. He indicated he was hoping to stay in Australia but if not, he would have to return to Nepal.

20. The Tribunal has considered the applicant’s evidence in writing and at the hearing. While he may wish to stay in Australia, the Tribunal finds he has not demonstrated a powerful or convincing reason for needing to stay. For these reasons, the Tribunal is not satisfied the applicant has a compelling need to remain in Australia.

    ·     the extent of compliance with visa conditions

21. There is no evidence before the Tribunal that the applicant has not complied with other visa conditions and the Tribunal has taken this into account. However, failure to maintain enrolment and engage in a course of study is a fundamental breach of a student visa and weighs against the applicant in this case.

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

22. The Tribunal discussed with the applicant, any hardship that may arise as a result of his visa being cancelled. The applicant advised he has spent a lot of time and money in Australia and added that he would be affected emotionally as well as financially. The applicant did not elaborate or provide further details but the Tribunal accepts there will be a degree of hardship caused by cancellation of the Student visa and gives some weight in his favour in this regard.

23. The Tribunal is mindful that the cancellation of the visa means the applicant could become an unlawful non-citizen liable for detention and removal from Australia. Moreover, the applicant would be subject to s.48 of the Migration Act and consequently would have limited options to apply for further visas in Australia. However, those are the intended consequences of the legislation and in the applicant’s case are not reasons why the visa should not be cancelled.

    ·     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

24. The applicant’s visa was cancelled because he remained in Australia as the holder of a Student visa but did not maintain enrolment in the higher education sector as required. The applicant gave reasons for this. As explained in his written submission of 24 December 2018 and at the hearing, the applicant claimed that after completing his Diploma course in Sydney, he did not want to go to UC in Canberra because he had adjusted to life in Sydney, he was living with a cousin who supported him and he did not want to start again in a new city. The applicant obtained a release from UC and enrolled with Victoria University. However, due to mostly obtaining pass marks in his previous course, the applicant was of the view he would not be able to cope with higher education.

25. The applicant then enrolled in an Advanced Diploma of IT which he completed but still felt he would be unable to cope with a Bachelor course and was afraid of failing. Instead the applicant enrolled in a Diploma and Advanced Diploma of Leadership and Management. The applicant advised he wants to complete his current course and go on to Bachelor and Master’s degrees.

26. The applicant claimed during the hearing that he had failed some of his subjects in his studies to date and this led him to doubt his ability to study higher education. He submitted in evidence transcripts for a Diploma of IT completed on 8 December 2016 and an Advanced Diploma of IT completed on 1 February 2018. The Tribunal notes the transcripts do not support the applicant’s claims of poor results or failed units. It may be that the applicant was referring to less than average marks in other courses but the documents submitted are for the courses related to the Bachelor degree. These show the applicant received pass marks in all of the units undertaken as well as achieving some credits in both the Diploma and Advanced Diploma course and several distinctions in the Diploma.[1] The Tribunal is not satisfied the applicant discontinued his studies in higher education for the reasons given. In addition, he did not apply to change his visa to allow him to study at a lower level instead of breaching the conditions.

    [1] The transcripts includes an explanation of grades which indicates P = Pass, D = Distinction and C = Credit.

27. The Tribunal does not consider the circumstances in which the grounds for cancellation arose were beyond the applicant’s control. That is, the applicant’s failure to study or apply to change the study terms of his visa which led to a breach of visa conditions. Therefore, the Tribunal places limited weight on the circumstances in which the ground for cancellation occurred.

    ·     past and present behaviour of the visa holder towards the department

28. There is no evidence before the Tribunal to indicate the applicant has not cooperated with the Department and the Tribunal has given the applicant some weight in this regard.

    ·     whether there would be consequential cancellations under s.140

29. There is no evidence before the Tribunal that there would be any consequential cancellations under s.140 of the Act.

    ·     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

30. The cancellation of the visa means that the applicant could potentially become an unlawful non-citizen liable for detention and removal from Australia. The applicant would be subject to s.48 of the Migration Act which would limit his options for applying for a visa. In future the applicant would also have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. However, those are the intended consequences of the legislation and are not sufficient reason for the applicant’s visa to not be cancelled.

    ·     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

31. There is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in Australia breaching any international obligations. On the evidence submitted the applicant does not have any children.

    ·     if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

32. The Subclass 573 Student Visa is not a permanent visa.

    ·     any other relevant matters

33. The Tribunal considers the applicant has been in Australia since 23 October 2014 and has had ample opportunity in that time to undertake a Bachelor degree which was the reason for the grant of the Student visa. While it may have been acceptable for the applicant to reassess his abilities or change his filed of interest after commencing studies in Australia, it was not open to him to remain in Australian and enrol in lower level courses in breach of visa conditions.

    Conclusion

34. The Tribunal has considered the applicant’s circumstances individually and cumulatively. Although the Tribunal finds there are some aspects in the applicant’s case that weigh somewhat in his favour, on balance, the Tribunal is satisfied that the majority of considerations weigh against the applicant. The Tribunal considers the length of time the applicant has spent in Australia having breached his visa conditions to be significant. The Tribunal is not satisfied the issues encountered by the applicant are sufficient reason for the visa not to be cancelled.

    DECISION

35. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Wendy Banfield
    Member